ELDREDGE  &  ELDREDGE 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 

GIFT  OF 
Si 

Idredge 


THE  LAW  OF  TAXATION 
IN  MICHIGAN 


THE  LAW  OF  TAXATION 
IN  MICHIGAN 


INCLUDING 


GENERAL  TAXATION,  DRAIN  TAXES 

SPECIAL  ASSESSMENTS,  PLEADING 

PRACTICE,  FORMS 


By 


WILLIS    BALDWIN 
in 

Author  of 

PERSONAL  INJURIES  IN  MICHIGAN 


DETROIT 

DRAKE  LAW  BOOK  COMPANY 
1909 


T  ' 


Copyright.  1909.  Drake  L.w  Book  Co. 


PREFACE 

As  each  state  grows  older,  it  gradually  develops  its 
statute  laws  and  its  own  line  of  decisions  interpreting  them. 
Therefore  foreign  decisions  become  of  less  weight,  not 
only  because  of  the  variations  of  the  statutes  upon  which 
such  decisions  are  based,  but  also  because  of  the  precedents 
established  by  the  appellate  court  of  the  home  state. 

Michigan  as  a  state  has  developed  her  own  tax  laws 
during  a  period  of  over  fifty  years  and  our  Supreme  Court 
has  very  extensively  interpreted  them.  It  has  been  the 
aim  in  the  present  work  to  collate  these  decisions.  Xo 
attempt  has  been  made  to  suggest  what  the  law  should 
be,  but  rather  to  show  what  it  is  at  the  present  time. 

In  an  attempt  to  state  principles  as  they  were  authori- 
tatively delivered,  the  language  of  the  text,  without  the 
use  of  quotation  marks,  is  taken  very  freely  from  the 
opinions. 

WILLIS  BALDWIN. 

Monroe,  Aug.  10,  1909. 


709700 


TABLE  OF  CONTENTS 


PART  ONE 

GENERAL  TAXATION 


CHAPTER  I. 
THE  TAXING  POWER. 

Section.  Page. 

1.  Taxing  Power  of  State 1 

2.  Taxing  Acts  not  Contracts 3 

3.  Taxing  Power  of  Municipalities 4 

4.  Purpose  of  a  Tax 6 

5.  Not  to  Accumulate  Money 9 

6.  Internal  Improvements   9 

7.  Public   Buildings    10 

8.  Public  Lighting  and   Water 10 

9.  Bonuses   for   Railroads 12 

10.  Bonuses   for  Factories   13 

11.  Street    Railways    14 

12.  Uniformity  of  Tax   14 

13.  Uniformity  as  Affected  by  Location 16. 

]  4.  Double    Taxation    17 

15.  License    17 

16.  Uniformity   of   Charge 21 

17.  Interstate  Commerce   22 

l  B,  Ordinances  Reasonable   £4 

29.  License  for  Trading  ! 27 

20.  Liquor  License  29 

21.  Prescribing  Limits  of  Sale 32 

22.  Ex  Post  Facto  Regulations 3.1 

23.  The   Liquor   Dealer 33 

24.  The  Liquor  Dealer's  Bond 36 

25.  Collection  and  Payment  of  License 39 

26.  License   for  Ferries 40 

CHAPTER  II. 
KINDS  OF  TAXATION. 

27.  Institute  Fees    41 

28.  Tolls     ,                 42 


TABLE    OF    CONTENTS  VIII 

Section.  Page. 

29.  Ad   Valorem  Tax 44 

30.  Specific  Taxes    45 

31.  Express   Companies    45 

32.  Railroad   Companies    46 

33.  Union    Depot   Companies 49 

34.  Railroad  Companies,  Exemption  from  Taxation 50 

35.  Street    Railway    Companies 5ii 

36.  Insurance    Companies    53 

37.  Telegraph  and  Telephone  Companies 54 

39.  Tax  upon   Privileges 54 

39.  Protective  Taxation   55 

40.  Inheritance   Tax    56 

41.  Internal    Revenue    60 

CHAPTER  III. 
TOWNSHIP  ORGANIZATION. 

42.  Organization    of    Townships 61 

43.  Collateral  Attack  of  Municipal  Organization 62 

44.  De  Facto  Officers 63 

45.  De  Facto  Officers  and  Intruders 65 

46.  De  Facto  Tax  Officers 67 

47.  Deputy  Officers    68 

48.  The   Supervisor    68 

49.  The  Supervisor,  Suit  for  Taxes 71 

50.  Change  in  Roll  by  Supervisor 71 

CHAPTER  IV. 
THE  ASSESSMENT  AND  LOCUS  OF  PROPERTY. 

51.  Real  Estate   73 

52.  To   Whom  Real  Estate  Assessed 75 

53.  Homestead   Lands.     Designation   of 76 

54.  Homstcad    Lands.      Interest   in 81 

55.  Corporate    Realty    82 

5<f.  Tenants   in   Common 83 

57.  Exemptions  from  Taxation 83 

5S.  Exemptions  of  Public  Property 87 

59.  Exemptions   of   Educational    Institutions 89 

60.  Exemptions  of  Railroad   Property 90 

61 .  Personal  Property   92 

62.  Personal    Property,    Vessels 93 

63.  Personal   Property,  Choses  in   Action 94 

64.  Personal    Property,    Mortgages 96 

65.  Stock  of  Corporation 97 

66.  Savings  Banks   9S 

67.  Banks '. '. 99 

68.  Collection  of  Tax  on  Bank  Stock 100 

69.  National   Banks    100 

70.  Exemptions  of  Copy  Rights,  etc 101 

71.  Exemptions  of  Personal  Property 102 


IX  TABLE  OF  CONT1 

CHAPTER  V. 
LOCUS,  DESCRIPTION  AND  VALUATION. 

Section.  Page. 

72.  Residence  of  a  Corporation 105 

73.  Residence  of  a  Taxpayer 107 

1  \.     Partnership    Property    '. 108 

Personal    Property    100 

76.  Trustees   and   Agents ill 

77.  Personal    Property    of    Non-Residents 11:.' 

78.  To  Whom  Property  May  be  Assessed 114 

79.  Non-Resident  Owners  of  Real  Estate 116 

80.  Unoccupied  Property  117 

81.  Description  of  Real"  Property 117 

82.  Abbreviations    , 118 

83.  Section   Lands    119 

84.  Plats    120 

85.  Contiguous    Parcels    121 

86.  Estoppel    12! 

87.  Personal  Property,  Description * l .' .' 

88.  Tax    Statements    !-':< 

89.  Valuation    l  .':: 

90.  Excessive  Valuation    125 

91.  Rebate  and  Refunding  of  Tax 125 

92.  Low  Valuation,  or  Omission  of  Valuation 120 

93.  Dollar  Marks   127 

CHAPTER  VI. 

BOARDS  OF  REVIEW,  SUPERVISORS,  AND 
STATE  TAX  COMMISSION. 

94.  Functions  of  129 

95.  Notice  of  Action  of 132 

06.     Review  of  Action  of 135 

97.  Review  of  State  Tax  Commission 137 

98.  Time  of   Meeting 139 

99.  Powers  of  Board  of  Review 140 

100.  Certificate  on   Roll 140 

101.  Signatures  qn  Roll  and  Certificate 142 

102.  Collateral  Attack  of  Certificate 143 

103.  Board  of  Supervisors 144 

104.  Certifying  Taxes  to  Board  of  Supervisors 144 

105.  Re-assessment  of  Taxes  145 

106.  Equalization    of    Counties 146 

107.  Record   of   Equalization 14* 

108.  Effect  of  Equalization  on  Townships 140 

100.     Certificate   of   Equalization 151 

110.  State   Taxes    151 

111.  State  Tax  Commission 153 

112.  State  Tax  Commission.     Power  of 153 

in.     Appointment  of  State  Tax  Commission 1 54 


TABLE   OF    CONTENTS  X 

CHAPTER  VII. 
TOWNSHIP  TAXES. 

Section.  Page. 

114.  Township    Clerk's    Certificate 155 

115.  Action  of  Electors 156 

116.  Meeting   of    Electors.     Records 157 

117.  Levy.    Township  Board 158 

118.  Levy.     Specifying  Ambunts    161 

119.  Notice  of  Board  Meetings 162 

120.  Lighting  Plants  and  Water  Works 164 

121.  General   Highway   Tax 165 

122.  Highway  Tax  for  Future  Use 166 

123.  Highway  Tax   Estimates 367 

124.  Return  of  Highway  Labor  Tax 168 

125.  Highway  Tax,  Miscellaneous 169 

126.  Highway  Tax  Action  of  Supervisors 171 

127.  School  Tax.     Purpose  of 173 

128.  Taxes  for  Higher  Education 173 

129.  School  Tax.     Authority  to  Raise 175 

130.  School   Taxes,   Miscellaneous 176 

131.  Surveyor's  Tax   177 

132.  Dog  Tax    177 

133      Fence   Viewer's   Tax 173 

134.  Agricultural   Society  Tax 178 

135.  Bounty  Tax   179 

CHAPTER  VIII. 

THE  ROLL. 

136.  Determining  Amount  of  County  Tax 180 

137.  Misappropriation   of   Money 181 

138.  Certifying  Taxes  1S2 

139.  Certificate  from  Board  183 

140.  Collector's  Roll 184 

141.  Extension    of    Taxes '. 186 

142.  Excess  of  Taxes 186 

CHAPTER  IX. 

COLLECTIONS  OF  LIEN  FOR  AND  LIABILITY 
FOR  TAX. 

143.  Lien  for  Taxes  upon  Real  Estate 189 

144.  Lien  upon  State  Swamp  Lands 193 

145.  Lien  for  Drain  Tax 194 

146.  Lien  for  Tax  Upon  Personal  Property 195 

147.  Enforcement  of  Lien  Upon  Personal  Property 196 

148.  Chancery  Sale    197 

149.  Warrant    .  .  198 


XI  TABLE  OF  CONTENTS 

Section.  Page. 

150.  Warrant,  Extension  of 199 

151.  Collector    201 

152.  Bond   of   Collector 

153.  Liability  of  Collector -J04 

154.  Liability   for  Tax 

155.  Payment    308 

156.  Certificates  as  Payment  ^12 

1 57.  Voluntary   Payment    'J 1 4 

158.  Involuntary   Payment    218 

159.  Common  Law  Protest -'  .'<> 

160.  Statutory   Protest    

161.  Demand' for  Tax 

162.  Tax   Receipts   2Jj 

163.  Levy    

164.  Levy  Upon  Railroad  Property 

165.  Sale  Under  Levy ">32 

CHAPTER  X. 
ACCOUNTING  WITH  COLLECTOR. 

166.  Accounting   with    Collector 233 

167.  Accounting  between  School   Districts 235 

168.  Accounting  with  County  Treasurer 235 

169.  Accounting  between  Townships 236 

170.  Accounting  between  Township  and  County 239 

171.  Accounting  between  State  and  County 239 

172.  County  Treasurer  and  State  Taxes 241 

173.  County  Treasurer  and   Miscellaneous 243 

174.  Collector's  Return  of  Taxes 244 

175.  Warrant  of  County  Treasurer 247 

176.  Certificate  of   County  Clerk 248 

177.  Return  to  Auditor  General 248 

178.  Taxes,  when  Sale  is  Set  Aside 251 

179.  Right  to  Pay  Delinquent  Taxes 253 

CHAPTER  XI. 
THE  SALE  AND  PURCHASERS. 

180.  Amount  Sold   256 

181.  Fraud  in  Sale 257 

182.  Several  Parcels  Sold  as  One 238 

183.  Who  May  Make  Sale 259 

184.  Purchasers   in   General 259 

185.  Occupant  as   Purchaser 262 

186.  Tenant  in  Common  as  Purchaser 263 

187.  Life  Tenant  as  Purchaser 266 

188.  Purchaser  Holding  Land   Contract 266 

189.  Mortgagee   as    Purchaser    26fl 

190.  Lessee  as   Purchaser..            v...  269 


TABLE    OF    CONTENTS  XII 

Section.  Page. 

r.i I.     Husband  and  Wife  as  Purchasers 269 

192.  Public  Officers  as  Purchasers 270 

193.  Payment,  etc 270 

194.  Caveat   Emptor    271 

195.  Surplus        -21:1 

196.  State   Tax    Lands 272 

197.  Purchase  of  State  Tax  Lands 273 

108.     Period   of   Redemption 278 

199.  Sale  of  Redemption  for  Less  Than  Taxes  Due 283 

200.  '  Refunding  of  Taxes  by  Owner 284 

201.  Cumulative  Tax  Titles 286 

CHAPTER  XII. 
THE  DEED  AND  ITS  INCIDENTS. 

202.  Execution    287 

203.  Recitals    287 

204.  Description   288 

205.  Validity    289 

206.  Operation 291 

207.  Title  that   Passes '. 293 

208.  Effect  of  Tax  Sale  under  Old  Law 295 

209.  Presumptions   from   Deed 295 

210.  Who  May  Attack  Deed 297 

211.  Lien  by  Void  Tax  Title  Holder 298 

212.  Reimbursement  of  Defeated  Purchaser 298 

213.  Reimbursements  for  Improvements 301 

CHAPTER  XIII. 
STATUTES  AND  ESTOPPEL. 

214.  Limitations.     Deed   Conclusive 303 

215.  Limitations  In  Re  Tax  Deeds 306 

216.  Limitations  In  Re  State  Homestead  Lands 309 

217.  Statute  of  Limitations,  Accounts 312 

218.  Construction  of  Statutes 313 

219.  Legalizing  Acts   314 

220.  Legislative  Allowance  of   Claims 315 

221.  Retroactive  Statutes    316 

222.  Healing  Acts    316 

223.  Healing  Acts.    When  They  Do  Not  Apply 319 

224.  Title  of  Acts ". 320 

225.  Estoppel    321 

226.  Estoppel   on   Drains 322 

CHAPTER  XIV. 
RECORDS. 

227.  Records     325 

228.  Missing   Records    326 


Mil  TA lU.l.  OF  CONTENTS 

Section.  Page. 

229.  Qualification  of  Officers 326 

230.  Absence  of    326 

231.  What  Are   

232.  Evidence   of    329 

233.  Time  of   Meeting 

234.  Collateral   Attack  of 330 

235.  Amendments  of    330 

236.  Signing,   and   Signatures   tc 331 

237.  Mistakes    in    332 

238.  Presumptions  as  to  Assessments 332 

239.  Presumptions  as  to  Collection 332 

240.  Presumption  of  Existing  Records 333 

241.  Presumptions    333 


PART  TWO 
DRAIN  TAXES 


CHAPTER  XV. 
JURISDICTION  AND  EX  PARTE  PROCEEDINGS. 

242.  Qualification  of  Drain  Commissioner 336 

243.  Appointment  of .  Special  Drain  Commissioner 339 

244.  Jurisdiction ;$41 

245.  Jurisdiction.     County  and  Township  Drains 343 

246.  Jurisdiction.     Public   Health 344 

247.  Jurisdiction.     Board  of  Health   345 

248.  Action  on  One  Petition 345 

249.  Description   in    Petition 340 

250.  Signers    to    Petition 347 

251.  Recitals   in   Petition 350 

Form  of  Petition  for  Drain 351 

252.  Surplusage  :n    Petition 352 

253.  Petition  to  Deepen,  Widen  or  Clean  Out 352 

Form  of  Petition  for  Cleaning  Out  Drain 353 

254.  Change   of   Drain 354 

255.  f ntcrsertion   of   Drains 3.*>  I 

256.  Survey    35:> 

257.  First    Order    356 

Form  of  First  Order 358 

258.  Necessity  of   Drain 359 

259.  Release  of  Right  of  Way 361 

Form  for  Release  of  Right  of  Way 36! 

260.  Attempt  to  Obtain  Release 3G3 

261.  When   Release   Unnecessary 364 


TABLE    OF    CONTENTS    *  XIV 

CHAPTER  XVI. 
PROCEEDINGS  IN  PROBATE  COURT. 

Section.  Page. 

262.  Application     . .  .> 365 

Form   for  Petition 367 

263.  Description    of  Lands 370 

Form  for  Order  for  Appointment  of  Special  Guardian 371 

264.  Citation 372 

Form  of  Citation 373 

265.  Notice    376 

Form  for  Printer's  Affidavit 378 

266.  Hearing 373 

267.  Appointment  of  Special  Commissioners 379 

268.  Order   Appointing    380 

Form  for  Order  of  Appointment  of  Special  Commissioners  381 

269.  Oath  of  Special  Commissioner 384 

Form  for  Oath  of  Special  Commissioners 385 

270.  Adjournment  of  Special   Commissioners 386 

271.  Return  of   Special   Commissioners 386 

Form  for  Return  of  Special  Commissioners 387 

272.  Disagreement  of  Special  Commissioners 390 

273.  Venire   for  Jury 391 

Form  for  Sheriff's  Oath 391 

Form  for  Summons 392 

274.  Return  of  Jury 393 

275.  Disagreement  of  Jury 394 

±76.     Confirmation  of  Report  of  Jury 394 

Form  for  Jury  to  Sign 394 

Form  for  Order  Confirming  Report  of  Jury 395 

277.  Delay  in   Proceedings 396 

278.  De  Novo  Proceedings 397 


CHAPTER  XVII. 
LEVY  OF  THE  TAX,  AND  ITS  INCIDENTS. 

279.  Final   Order   400 

Form  of  Final  Order  for  Determination 401 

280.  Notice  of  Sale  and  Assessment 40'i 

Form  of  Notice  of  Sale 402 

281.  Sale  of   Drain 404 

282.  Apportionment  of   Benefits 405 

Form  for  Apportionment  of  Benefits 40ft 

283.  Description  of  Lands  Assessed 407 

284.  Appeal    from    Assessment 408 


XV  TABLE  OF  CONTENTS 

Section.  Page. 

Form  for  Gaim  of  Appeal 410 

Form  for  Order  of  Hearing  on  Claim  of  Appeal 411 

Form  for  Appointing  of  Board  of  Review 41-* 

Form  for  Oath  of  Board  of  Review 4i:: 

Form  for  Report  of  Board  of  Review 413 

285.  Costs  and   Expenses 414 

286.  Board  of  Supervisors 41". 

287.  The  Supervisor    4 1  > 

288.  Construction   of   Drain 

289.  Tax  Roll 420 

Form  for  Certificate  of  Drain  Tax  Roll 4 MI 

290.  Sale  of  Lands  for  Taxes 422 

291.  Drain  Funds  and  Orders 423 

292.  Liability   for  Tax 424 

293.  Liability  of  Townships 425 

294.  Liability  of  Petitioners 427 

294a.  Interest    .  .  429 


CHAPTER  XVIII. 
STATUTES  AND  RECORDS. 

295.  Record,   Completeness   430 

296.  Filing  of  Records 431 

297.  Construction  of    Statutes 431 

298.  Saving  Clauses  and  Amendments 432 

299.  Validating  Acts 433 

300.  Healing  Acts    434 

301.  Constitutionality  of  Powers 434 

302.  Constitutionality  of  Laws 435 

303.  Various  Drain  Laws 436 

304.  Presumptions     438 


CHAPTER  XIX. 
HIGHWAY  AND  SURFACE  WATERS. 

305.  Drains   in   Highways 439 

306.  Private  Drains  in   Highways 441 

307.  Private   Drains 443 

308.  Municipal  Liability  443 

309.  Drain  Outlets 444 

310.  Bridges   and    Culverts 445 

311.  Obstructing    Highway    Drains 446 

312.  Diversion  of  Stream   446 

313.  Riparian  Rights  in  Lakes  447 

314.  Surface  Waters.     Lower   Proprietor   441 

315.  Percolating  Waters    **8 


TABLE    OF    CONTENTS  XVI 


PART  THREE 
SPECIAL  ASSESSMENTS 


CHAPTER  XX. 
GENERAL  POWERS  AND  PRELIMINARIES. 

Section.  Page. 

316.  Power  to  Levy  Special  Assessments  450 

317.  The  Tax  Must  be  for  the  Purpose  Named 453 

318.  The    Petition    455 

319.  The  Vote  455 

320.  Ordinances 457 

321.  The  Determination   457 

Form  of  Determination   460 

Form  of  Determination  after  Hearing  Objections 462 

322.  Particulars  of  Determination 463 

323.  The  Jury   464 

324.  Comprehensiveness  of   Terms    465 

325.  Power  to  Pave   466 

326.  Power  to  Make  Sewers  46S 

327.  Power  to  Build  Sidewalks  468 

328.  Reasonable  Time  TO  Build  469 

329.  Power  in  Re  Public  Parks  and  Waterworks 469 

330.  Limitations  of  Tax   470 

331.  Board  of  Public  Works  471 

332.  Board  of  Estimates  472 

333.  Board  of  Assessors   4715 

Form  of  Instructions  to  Assessors 473 

334.  Determining  Amount  to  be  Paid  by  the  City 475 

335.  Plans  and   Specifications    476 

336.  Use  of  Patented  Articles    477 

337.  Estimates    47s 

338.  Notice   of   Proposed  Improvements 479 

339.  Notice   of   Assessment    480 

Form  of  Notice  of  Review  of  Assessments  481 

340.  Notice   for   Bids    482 

341.  Publication   of  Notice 482 

342.  Service  of   Notice  and  Return ..  483 

343.  Costs  and  Expenses   484 

CHAPTER  XXI. 
THE  ASSESSMENT. 

344.  The  Assessment  District    485 

345.  Exemptions.     Church    Property    488 

346.  Exempl  ions.     Public  Property  489 


XV11  TABLE  OF  CONTENTS 

Section.  Page. 

.'.17.     Contracts  to  Exempt  490 

348.  Roll.     Residents  and  Non-Residents   491 

349.  Roll.    Valuation 491 

3:»o.    Roll.    Amount  to  be  Raised  Each  Year 492 

351.  Rcll.     Miscellaneous    493 

352.  Assessment  by  Frontage    494 

353.  Assessment  According  to  Benefits  495 

354.  Assessment  According  to  Area   498 

355.  Hearing  or  Review    499 

356.  The  Certificate  on  the  Roll  500 

Form  of  Certificate  of  Board  of  Assessors 502 

357.  Confirmation  of,  Roll   504 

Form  of  Resolution  Approving  Roll  503 

358.  Vacating  Assessments   504 

359.  Reassessment   50A 

CHAPTER  XXII. 
THE  CONTRACT,  LIABILITY,  ETC. 

360.  Bids    507 

361.  Irregularities  in  Accepting  Bids 510 

362.  The  Contract  :>l  1 

363.  The  Contract,  Extras 512 

364.  Authority  of   Engineer 514 

365.  Non-performance  of  Contract 515 

366.  Stipulated  Damages   516 

367.  Materials  in  Street ' 516 

368.  Primary  Liability  for  the  Work 517 

369.  Bonds 519 

Form  of  Resolution  Authorizing  Bonds  (sec  Appendix  A). 

370.  The  Record   521 

371.  Presumptions    522 

372.  Qualifications   of    Electors 

373.  Delegated    Authority    r.23 

374.  Ratified  Acts    523 

375.  Healing   Acts    524 

376.  Estoppel    524 


PART  FOUR 
PLEADING  AND  PRACTICE 


CHAPTER  XXIII. 
FORECLOSURE  OF  TAX  LIEN. 

377.  Petition   and   Record 628 

378.  Parties   to   Petition . .  530 


TABLE  OF  CONTENTS  XVIII 

Section.  Page. 

379.  Minors  and  Incompetents 531 

380.  The   Subpoena    532 

381.  Order  of  Hearing 533 

382.  Designation   of   Newspaper 534 

383.  Publication.     Substituted    Service 534 

384.  Publication.     Details    536 

285.     Proof  of  Publication 533 

386.  Objection  or  Answer  to  Petition 540 

387.  Order   Pro  Confesso 541 

388.  Jurisdiction  of  Court 541 

389.  Hearing  on  Petition  and  Entry  of  Decree 543 

390.  Decree.     General    Effect 545 

391.  Decree.      Particulars    646 

392.  Decree.      Evidence    of 550 

393.  Appeal    from    Decree 550 

:!94.     Report   of    Sale 551 

395.  Report  of  Sale  to  Auditor  General 552 

396.  Order    of    Confirmation 553 

397.  Certificate    of    Error 553 

398.  Setting  Aside  Sale  by  the  Court 557 

399.  Petition   to    Court.     Laches 558 

400.  Bill    of    Review 559* 

401.  Writs    of    Assistance 560 

402.  Writs   of   Assistance.     Notice .  5~64 

Form  for  Notice  of  Sale  of  Land  for  Taxes 567 

403.  Writs  of  Assistance.     Service  and  Return  of  Notice 573 

404.  Writs  of  Assistance.     Defences  to 576 


CHAPTER  XXIV. 
ACTIONS  AT  LAW. 

405.  Form  of  Action  for  Tax 579 

406.  Actions  for  Special  A  ssessments 583 

407.  Suits    Against    State 584 

408.  Actions  Against  Collector ,. . .  586 

409.  Actions  Against  Municipalities,  Assumpsit 587 

Form  for  Declaration  Against  a  Municipality 589 

410.  Presenting  Claim  to  City 590 

411.  Replevin     '•. 591 

412.  Trover    693 

413.  Trespass    593 

414.  Mandamus  to  Pay  Money 595 

415.  Mandamus  as  to  Other  Duties 597 

416.  Mandamus  to  Review  Action  of  Court 598 

417.  Mandamus  In  Re  Drain  Proceedings 599 

418.  Mandamus  In  Re  Special  Assessments 599 

419.  Ejectment    599 

420.  Recovery  for  Improvements  and  Taxes 601 

421 .  Improvements.   Claim  of    Property 602 

422.  Certiorari  In  Re  General  Tax. .                               603 


XIX  TABLE  OF  CONTENTS 

Section.  Page. 

423.  Certiorari  In  Re  Special  Assessments 604 

424.  Certiorari   In   Drain   Proceedings 605 

425.  Time  of  Bringing  Certiorari 606 

426.  Certiorari,   Injury    609 

427.  Certiorari  and  Collateral  Actions 609 

428.  Certiorari,  Errors  not  Cured  by  Return 609 

429.  Certiorari,   Explanations  in  Return 610 


CHAPTER  XXV. 
EQUITABLE  ACTIONS. 

430.  Equity  Jurisdiction  over  Drain  Tax 612 

431.  Equity  Jurisdiction  over  Special  Assessments 614 

432.  Legislative   Regulation  of   Injunction 614 

433.  Jurisdiction,  as  Affected  by  Amount 616 

434.  Injunction  to  Restrain  Waste 616 

435.  Injunction   Restraining   Expenditures 617 

436.  Restraining  Collection  of  Tax 617 

437.  Restraining  Sale  of  Land 619 

438.  What  Constitutes  a  Cloud  en  Title 620 

439.  Bill  to  Quiet  Title 621 

440.  Bill  to  Quiet  Title  Against  Drain  T^x 624 

CHAPTER  XXVI. 
PLEADINGS,  ETC. 

441.  General   Practice   62.) 

442.  Parties    Complainant    626 

443.  Parties   Complainant   on    Drains 628 

444.  Parties  In  Re  Special  Assessments 629 

445.  Parties   Defendant    629 

446.  Auditor  General  as  Defendant 631 

447.  Parties  Defendant  in  Drain  Proceedings 632 

448.  Averments    •  •  •  •  63S 

449.  Amendments    632 

450.  Amendments  In  Re  Special  Assessments 633 

451.  Opening   Decree    634 

452.  Evidence  Before  Jury  in  Re  Special  Assessments 63- 

453.  Collateral   Attack  of  Tax  Decree 635 

454.  Collateral  Attack  of  Drain  Proceedings 6 

155.  Collateral  Attack  of  Special  Assessments 6 

456.  Res   Judicata    fl 

457.  Res  Judicata  in  Drain  Proceedings fi 

458.  Evidence,    Certificate,    e*c 6 

459.  Evidence,  Tax  Roll 6 

Appendix  A   6 

Table  of  Cases fl 

Index    687 


THE  LAW  OF  TAXATION 


PART  ONE 
GENERAL  TAXATION 


CHAPTER  I. 
THE  TAXING  POWER. 

§  1.  Taxing  Power  of  State. 

§  2.  Taxing  Acts  not  Contracts. 

§  3.  Taxing  Power  of  Municipalities. 

§  4.  Purpose  of  a  Tax. 

5  5.  Not  to  Accumulate  Money. 

§  6.  Internal  Improvements. 

9  7.  Public    Buildings. 

§  8.  Public   Lighting  and  Water. 

S  9.  Bonuses  for  Railroads. 

§10.  Bonuses  for  Factories. 

§11.  Street   Railways. 

§12.  Uniformity  of  Tax. 

§13.  Uniformity  as  Affected  by  Location. 

§14.  Double  Taxation. 

§15.  License. 

§16.  Uniformity  of  Charge. 

§17.  Interstate  Commerce. 

§18.  Ordinances  Reasonable. 

§19.  License  for  Trading. 

§20.  Liquor  License. 

§21.  Prescribing  Limits  of  Sale. 

§22.  Ex  Post  Facto  Regulations. 

§23.  The  Liquor  Dealer. 

§24.  Liquor  Dealers'  Bond. 

§25.  Collection  and   Payment  of  License. 

§26.  License  for  Ferries. 

CROSS-REFERENCES. 

Lighting  and  Water  Works.  §§120,  :)29.  Parks.  §329.  Pav- 
ing, §325.  Sewers,  §326.  Sidewalks,  §327.  Special  assessments, 
§§316,  317. 

§1.     Taxing  Power  of  State. 

The  power  of  legislation,  and  consequently  of  taxation, 
operates  on  all  persons  and  property  belonging  to  the  body 
(i) 


§1  THE    LAW    OF    TAXATION  2 

politic.  This  is  an  original  principle,  which  has  its  founda- 
tion in  society  itself, — it  is  granted  by  all  for  the  benefit 
of  all, — it  resides  in  the  government  as  a  part  of  itself,  and 
need  not  be  reserved  when  property  of  any  description,  or 
the  right  to  use  it  in  any  manner,  is  granted  to  individuals 
or  corporate  bodies1.  The  amount  of  taxes  is  only  limited 
by  the  necessities  of  the  government2. 

There  are  no  bounds  within  which  discretionary  action 
must  be  confined.  The  legislature  levying  the  tax  is  the 
sole  and  ultimate  judge  of  the  expediency  or  necessity  of 
requiring  it,  and  of  the  extent  to  which  it  shall  be  charged 
upon  any  class  of  taxable  articles.  And  where  a  legislature 
acts  within  the  lines  of  its  constitutional  powers,  the  motives 
of  its  action  can  never  be  judicially  reviewed,  nor  can  the 
courts  in  any  way  determine  the  propriety  of  its  enact- 
ments. 

That  power  may  easily  be  extended  far  enough  to 
destroy  anything  on  which  burdens  may  be  imposed,  by 
making  those  burdens  so  heavy  as  to  become  prohibitory. 
It  is  within  the  experience  of  most  countries  that  duties 
may  become  prohibitory,  and  where  taxes  are  chargeable 
specifically,  so  that  particular  objects  may  be  taxed  at 
pleasure,  the  same  result  may  easily  be  reached  by  specific 
impositions  upon  domestic  interests.  The  argument  that 
such  prohibitory  action  is  improbable  has  no  force  in 
determining  the  existence  or  non-existence  of  the  power. 
There  is  no  legitimate  power  possessed  by  any  legislature 
which  it  may  not  lawfully  carry  to  an  extreme  where 
extreme  action  is  deemed  expedient.  Where  a  power  of 

1.     People    v.    Detroit    Ry.,    1         2.     Sands  v.  Manistee,  123  U. 
Mich.   458;   State   v.   Providence      S.  283. 
Bank,  4   Peters   514. 


3  THE  TAXIKG   POWER  ^ 

destruction  has  been  conferred  it  is  always  possible  that 
it  may  be  exercised,  although  it  may  be  very  improbable3. 
Judicial  proceedings  are  not  necessary  to  appropriate  money 
for  taxes4. 

§2.     Taxing  Acts  not  Contracts. 

Acts  relative  to  the  taxation  of  municipalities  do  not 
partake  of  the  nature  of  a  contract  so  as  to  thereby  become 
irrepealable  by  a  succeeding  legislature.  Municipalities  are 
mere  agencies  of  the  state;  and  the  state  therefore  has  the 
right  to  discontinue  the  agency  at  pleasure.  The  franchises 
which  have  been  conferred  upon  any  municipality  may  be 
recalled  at  will  by  the  same  power  that  granted  them. 
Thus,  where  the  legislature  has  set  off  one  taxing  district 
for  a  specific  purpose,  and  the  inhabitants  of  that  district 
have  raised  the  taxes  required,  there  is  no  implied  con- 
tract that  it  shall  not  be  included  in  a  new  district  for  the 
same  taxing  purposes  as  the  first,  and  the  lands  within  that 
district  be  required  to  pay  another  tax  for  the  same  purpose 
as  the  former. 

A  charter  to  a  private  corporation  is  regarded  as  a  con- 
tract; but  a  charter  to  a  municipality  may  be  controlled, 
altered,  or  amended  by  the  government  in  such  manner  as 
the  public  interest  may  require.  Such  legislative  inter- 
ference cannot  be  said  to  impair  the  contract  because  there 
is  in  reality  but  one  party  to  it,  the  trustees  or  governors 
of  the  corporation  being  merely  the  trustees  for  the  public, 

3.     Fifield   v.   Close,   15   Mich.  2    Black    620;    Bank    Tax    Case, 

505.      The     principle     that     the  2  Wall.  200;  and  Youngblood  v. 

right   to   tax   includes   the   right  Sexton.  32  Mich.  406. 

to  destroy  will  be  found  in  Me-  4.     Weimer     v.     Bunbury,    30 

Collough  v.  Maryland,  4  Wheat  Mich.  201. 

316;    Weston    v.    Charleston,    9  See  5§414-418  as  to  power  to 

Wheat.  733;   People  v.  Com'rs.,  tax  for  improvements. 


§3  THE    LAW    OF    TAXATION  4 

the  cestui  que  trust  of  the  foundation5.  A  municipality 
obtains  no  vested  right  TO  maintain  a  fixed  taxing  district 
for  any  purpose  since  its  object  and  duty  is  incompatible 
with  any  idea  of  compact.  The  conferring  of  a  right  of 
taxation  upon  a  municipality  is  the  exercise  by  the  legis- 
lature of  a  public  and  governmental  power  which  cannot 
be  imparted  in  perpetuity,  and  is  always  subject  to  re- 
vocation, modification  and  control,  aift  is  not  the  subject 
of  contract6.  Upon  a  similar  principle,  a  municipality  can 
acquire  no  vested  right  to  maintain  or  regulate  a  ferry, 
though  it  may  have  done  so  almost  from  time  immemorial. 
The  parties  to  such  a  grant  do  not  stand  toward  each 
other  in  the  attitude  of  making  a  contract  such  as  is  con- 
templated in  the  constitution.  Hence,  generally,  the  doings 
between  the  legislature  and  municipalities  is  legislative, 
rather  than  contractual,  subject  to  change  at  the  will  of  the 
legislature7. 

§3.     Taxing  Power  of  Municipalities. 

The  burden  is  upon  the  municipality  to  show  a  grant  of 
power  to  levy  a  tax  by  express  words  or  necessary  im- 
plication, for  otherwise  in  the  eexrcise  of  this  high 
prerogative  of  sovereignty,  the  taxing  of  private  property 
without  the  consent  of  the  owner,  cannot  be  justified8. 
Where  the  object  of  taxation  is  one  of  general  interest  to 
the  state,  it  is  competent  for  the  state,  instead  of  assessing 

5.  Saginaw  v.    Hubinger,   137      v.    New   Jersey,    130    U.    S.    189, 
Mich.  72;  New  Orleans  v.  N.  O.      199. 

Water  Wks.   Co.,  142  U.  S.  79;  7.     East  Hartford  v.  Hartford 

Essex     Public    Road     Board    v.  Bridge  Co..  10  How.  511,  533. 

Shinkle.  140  U.  S.  334.  8.     Williams      v.      Detroit,     2 

6.  Laramie     Co.     v.     Albany  Mich.  560,  574. 
Co..    92    U.    S.    307;    Williamson 


THE   TAXING   POWER 

the  burden  directly,  and  providing  for  it  by  means  of  a 
general  state  levy,  to  apportion  it  among  the  several  counties 
and  towns,  and  to  authorize  and  require  them  to  provide 
for  it  by  local  taxation.  Municipalities  have  no  inherent 
power  of  taxation,  but  take  only  so  much  as  the  state  shall 
see  fit  to  allow,  and  under  such  restrictions  as  the  legislature 
may  think  proper  to  impose.  Necessity  is  not  the  governing 
consideration  and  ift  many  cases  it  has  little  or  nothing  to 
do  with  the  question  presented.  If  taxes  are  imposed,  it 
is  not  because  it  is  absolutely  necessary  that  certain  objects 
be  accomplished,  but  because  the  public  authorities  deem  it 
best  they  should  be9.  The  municipality  has  no  inherent 
right  to  decide  for  itself  what  taxes  shall  be  levied  for  the 
general  purpose  of  local  government;  and  it  is  not  there- 
fore a  valid  objection  that  it  was  not  consulted  in  its  levy10. 
The  constitution  requires  the  legislature  to  restrict  the 
power  of  municipalities  to  tax,  and  in  so  doing  it  performs 
an  imperative  duty11.  The  legislature  may  authorize  the 
raising  of  money  for  a  specified  purpose,  and  may  then 
repeal  such  authority,  leaving  the  money  in  the  hands  of 
the  municipality12.  The  legislature  has  generally  fixed  this 
limit  at  a  percentage  upon  the  assessed  valuation  of  the 
municipality13.  This  statutory  limit  cannot  be  exceeded, 
in  the  absence  of  statutory  permission,  by  incurring  liability 
to  become  due  in  future  years.  The  sum  total  of  the  in- 
debtedness incurred  must  be  within  the  limit  fixed  to  be 

raised  in  one  year14. 

• 

9.  Detroit  etc.  Ry.  v.  Salem,         12.    Tivey  v.  People,  8  Mich. 
20   Mich.   452.  128. 

10.  Youngblood     v.     Sexton,  13.     Schneewied  v.   Niles,   103 
32   Mich.   406.  Mich.  301. 

11.  Watles     v.     Lapeer,     40  14.     Mitchell      v.      Negaunee, 
Mich.  624;  Anderson  v.  Hill.  54  113   Mich.   357,   362. 

Mich.  477. 


§4  THE    LAW    OF    TAXATION  6 

By  the  weight  of  authority,  municipalities  have  the  right 
to  tax  farming  lands  within  their  limits  for  the  maintain- 
ance  of  water  works  and  other  conveniences,  though  such 
improvements  are  not  made  accessible  to  the  land  taxed. 
The  legislature,  which  alone  has  authority  to  determine 
and  fix  the  proper  bounds  of  the  municipal  divisions  of  the 
state,  and  also  to  establish  taxing  districts,  has  proceeded 
to  do  so,  and,  in  fixing  city  boundaries  without  any  pro- 
vision for  a  discrimination  in  the  taxation  of  property 
within  them,  had  in  effect  determined  that  no  such  discrim- 
ination should  be  made.  The  whole  subject  was  one 
committed  by  the  constitution  exclusively  to  the  judgment 
and  discretion  of  the  legislature,  whose  members,  as  in 
other  cases  of  legislation,  would  make  inquiry  into  the 
facts  in  their  own  way,  and  act  upon  their  own  reasons. 
No  question  could  be  made  of  the  complete  legislative 
jurisdiction  over  the  case,  and,  if  the  action  was  unfair 
and  led  to  unequal  and  unjust  consequences,  it  could  not 
be  assailed  in  the  courts  upon  any  ground  that  would  not 
warrant  a  judicial  review  of  legislative  action  in  which 
parties  complain  of  injustice  and  inequality15. 

§4.     The  Purpose  of  a  Tax. 

Every  species  of  taxation,  in  whatever  mode,  is  based,  in 
theory  and  principle,  upon  an  idea  of  compensation,  benefit 
or  advantage,  either  directly  or  indirectly,  to  the  person  or 
property  taxed.  If  the  tax  is  levied  for  the  support  of  the 
government  and  general  police  of  the  state,  for  the 
education  and  moral  instructions  of  the  citizens,  or  the 
construction  of  works  of  internal  improvement,  the  one  so 

15.  Lewick  v.  Glazier,  116  as  to  special  assessments.  Will- 
Mich.  493;  Mitchell  v.  Negau-  iams  v.  Detroit,  2  Mich.  560,  568. 
nee,  113  Mich.  359,  364.  See  §406, 


7  THE   TAXING   POWER  §4 

taxed  is  supposed  to  receive  a  just  compensation  in  the 
security  which  government  affords  to  his  person  and 
property,  the  means  of  enjoying  his  possessions,  and  their 
enhanced  capacity  to  contribute  to  his  comforts  and  gratifi- 
cation, which  constitute  their  value.  Taxation,  not  based 
upon  any  idea  of  benefit  to  the  person  taxed  would  be 
grossly  unjust,  tyrannical  and  oppressive. 

Taxes  and  loans,  when  authorized  to  be  raised  by  any 
public  body,  must  be  raised  under  the  implied  condition 
that  they  are  to  be  applied  to  the  public  uses  under  the 
control  or  care  of  that  body.  They  cannot  be  raised  for 
the  purposes  or  uses  of  others  unless  such  a  power  is 
plainly  given,  and  such  a  power  cannot  be  given  for  all 
purposes16.  Upon  this  principle,  money  voted  to  increase 
the  capacity  of  a  water  and  light  plant  cannot  be  used  to 
purchase,  instead  of  manufacturing,  these  commodities; 
nor  to  purchase  power  instead  of  making  it17.  The  tax 
must  be  imposed  for  a  public  and  not  a  mere  private 
purpose.  The  discrimination  by  the  state  between  differ- 
ent classes  of  occupations,  and  the  favoring  of  one  at  the 
expense  of  the  rest,  whether  that  one  be  farming  or  bank- 
ing, merchandizing  or  milling,  printing  or  railroading,  is 
not  legitimate  legislation,  and  is  an  invasion  of  that  equality 
of  right  and  privilege  which  is  a  maxim  in  state  govern- 
ment. When  the  door  is  once  opend  to  it,  there  is  no  line 
at  which  it  can  be  said  the  legislature  must  stop,  since 
every  honest  employment  is  honorable,  beneficial  to  the 
public  and  deserving  of  encouragement.  The  more  success- 

16.     In    Atty   General   v.   Bay  The  same  principle  is  found  in 

County  Board,  34  Mich.  46,  the  the     railroad    bonus    cases,    §9, 

board  of  supervisors  attempted  post. 

to  levy  a  county  tax  to  distri-  17.    Vossen   v.   St.   Clair,   148 

bute    to    several    townships    for  Mich.  686. 
township    roads.      Held,    illegal. 


§4  THE    LAW    OF    TAXATION  8 

ful  any  employment  can  be  made,  the  more  does  it  generally 
subserve  the  public  good.  But  it  is  not  the  business  of  the 
state  to  make  discriminations  of  one  class  against  another. 
The  state  can  have  no  favorities.  Its- business  is  to  protect 
the  industry  of  all,  and  to  give  all  the  benefit  of  equal  laws. 
Taxation  is  a  mode  of  raising  revenue  for  public  purposes 
only;  and  when  it  is  prostituted  to  objects  in  no  way 
connected  with  the  public  interests  or  welfare,  it  ceases  to 
be  taxation  and  becomes  plunder18.  The  tax  must  be  laid 
according  to  some  rule  of  apportionment;  not  arbitrarily 
or  by  caprice  but  so  that  the  burden  may  be  made  to  fall 
with  something  like  impartiality  upon  the  persons  or 
property  upon  which  it  justly  and  equitably  should  rest. 
A  state  burden  is  not  imposed  upon  any  territory  smaller 
than  the  whole  state,  and  a  county  burden  is  not  imposed 
upon  any  territory  smaller  or  greater  than  the  county. 
While  absolute  equality  and  justice  are  never  attainable, 
the  adoption  of  some  rule  tending  to  that  end  is  in- 
dispensable19. If  a  tax  is  imposed  upon  one  of  the  muni- 
cipal subdivisions  of  the  state  only,  the  purpose  must  not 
only  be  a  public  purpose  as  regards  the  people  of  that  sub- 
division, but  it  must  also  be  local,  that  is,  the  people  of  that 
municipality  must  have  a  special  and  peculiar  interest  in 
the  object  to  be  accomplished,  which  will  make  it  just, 
proper  and  equitable  that  they  should  bear  the  burden 
rather  than  the  state  at  large,  or  any  considerable  portion 
of  the  state20. 

18.     People      v.      Salem,      20  v.   School   Dist.,  57   Pa.  St.  433; 

Mich.     452,     474,     approved     in  Broadhead     v.     Milwaukee,      19 

Mich.  Corn  Imp.  Ass'n  v.  Audi-  Wis.  652.     See  §9,  post, 

tor  General,  150  Mich.  69,  where  19.     People  v.  Salem,  20  Mich, 

an    appropriation    of   $500.00    to  452,   474;    Ryerson   v.    Utely,   16 

a  voluntary  association   for  the  Mich.  269;  Weeks  v.  Milwaukee, 

improvement     of     corn     in     the  10    Wis.    258;    Merrick    v.    Am- 

state  was  held  illegal;  Sharpless  hurst,  12  Allen  504. 

v.  Mayor,  21  Pa.  St.  168;  Greier  20.     Butler    v.     Saginaw    Co., 


9  THE  TAXING  POWER  .">,  6 

§5.     Purpose  of  Tax  is  not  to  Accumulate  Money. 

It  is  contrary  to  our  policy  to  levy  taxes  for  the  purpose 
of  accumulating  funds  for  the  future.  It  is  not  con- 
templated that  funds  will  pass  by  inheritance  to  new  town- 
ships-1. 

§6.     Purpose  of  Tax  for  Internal  Improvements. 

The  constitution  provides  that  "The  state  shall  not  be  a 
party  to,  or  interested  in,  any  work  of  internal  improve- 
ment, nor  engaged  in  carrying  on  any  such  work,  except 
in  the  expenditure  of  grants  to  the  state  of  land  or  other 
property22." 

The  only  improvements  permissible  are  local  in  their 
character,  authorized  by  the  police  power  of  the  state,  and 
paid  for  by  local  taxation.  It  is  immaterial  whether  the 
proposed  improvement  be  upon  the  highways,  or  drains, 
or  for  a  railroad,  or  any  other  private  or  local  improve- 
ment23. The  state  cannot  set  aside  lands  bid  in  for 
delinquent  taxes  for  such  work.  Such  lands  are  not 
granted  to  the  state  except  in  a  most  technical  sense;  for 
though  the  auditor  general  does  execute  a  deed  to  the 
state,  he  holds  them  in  the  first  instance  for  the  state,  which 
has  purchased  them  for  delinquent  taxes.  They  represent 

26  Mich.  22,  holding  that  the  tion  of  1908,  Art.  X,  §14;  Gib- 
board  of  supervisors  could  not  son  v.  Com'r  of  Land  Office, 
levy  a  tax  upon  the  county  at  121  Mich.  49. 
large  to  pay  county  drain  23.  Atty  General  v.  Pingree, 
orders.  Wells  v.  Weston,  22  120  Mich.  550;  Anderson  v.  Hill, 
Mo.  384:  Morford  v.  Unger,  8  54  Mich.  477;  People  v.  Spring- 
la.  82.  wells  Board,  25  Mich.  153;  Spar- 

21.  Roscommon  Twp  v.  Mid-  row,  v.   Com'r   of  Land   Office, 
land  Twp,  39   Mich.  424;   Mich.  56  Mich.  567;  Ryerson  v.  Utely, 
Land,    etc.,    Co.,    v.    La    Anse  16  Mich.  269:    Wilcox    v.    Pad- 
Twp.,  63  Mich.  700,  703.  dock,  65  Mich.  23. 

22.  Constitution  of  1850.  Art.          See   Bonuses,  post. 
XIV,     §9,     Beecher's     Constitu- 


§§7,    8  THE    LAW    OF    TAXATION  10 

the  states  lien  upon  them  for  taxes,  and  then  indirectly 
the  taxes  would  be  applied  to  such  a  purchase.  If  the  land 
is  then  applied,  the  deficiency  arising  from  the  failure  of 
the  former  owner  to  pay  the  taxes  for  which  the  lands 
were  sold  will  have  to  be  met  by  taxation24. 

§7.     Purpose  of  Tax  for  Public  Buildings. 

A  municipality  has  a  necessary  right  to  provide  its  own 
public  buildings.  It  may  also,  gratuitously,  furnish  accom- 
modations for  public  officers  which  do  not  represent  that 
municipality;  as  a  city  may  gratuitously  furnish  a  court 
house  for  a  county26. 

§8.     Purpose  of  Tax  for  Public  Lighting  and  Water. 

The  maintainance  of  public  streets  and  buildings  is  a 
public  service,  and  it  may  be  reasonably  necessary  to  light 
them  in  order  that  the  greatest  public  benefit  may  be 
obtained  from  using  them.  Cities  and  thickly  settled  towns 
have  for  a  long  time  been  accustomed  to  light  their  public 
buildings  and  some  of  their  streets  at  the  public  expense. 
If  the  streets  and  public  buildings  are  to  be  lighted,  the 
means  is  a  matter  of  expediency.  If  the  legislature  can 
authorize  cities  and  towns  to  light  their  streets  and  public 
buildings,  it  can  authorize  them  to  do  this  by  any  appro- 
priate means  which  it  may  think  expedient.  As  a  question 
of  constitutional  power,  we  cannot  distinguish  the  right 

24.  Gibson  v.  Com'r  of  Land  34  Mich.  402,  it  is  held  that  the 
Office,  121  Mich.  49,  construing  city  could  build  a  house  of  cor- 
Local   Act  423   of  1897,  provid-  rection  to  be  used  by  itself  and 
ing    for     the     improvement     of  the  state. 

Maple    River,    and    imposing    a  See   "Parks    etc."    §329,   post; 

tax  if  necessary.  the    municipality     cannot     levy 

25.  Callam     v.    Saginaw,     50  special     assessments     for     these 
Mich.  7.     In  Detro't  v.  Laughna,  purposes. 


11  THE  TAXING  POWER  §8 

to  authorize  cities  and  towns  to  buy  gas  or  electricity  for 
their  use  from  the  right  to  authorize  them  to  manufacture 
it  for  their  use.  In  general,  it  may  be  said  that  matters 
which  concern  the  welfare  and  convenience  of  all  the 
inhabitants  of  a  city  or  town,  and  cannot  be  successfully 
dealt  with  without  the  aid  of  power  derived  from  the 
legislature,  may  be  subjected  to  municipal  control  when 
the  benefits  received  are  such  that  each  inhabitant  needs 
them,  and  may  participate  in  them,  and  it  is  for  the  interest 
of  each  inhabitant  that  others  as  well  as  himself  should 
possess  and  enjoy  them26.  It  was  long  ago  declared  that 
the  supply  of  a  large  number  of  inhabitants  with  pure 
water  was  a  public  purpose27.  So,  also,  is  the  purchase  of 
land  for  parks28. 

While  a  citizen  may  be  compelled  to  pay  his  portion  of 
the  cost  of  maintaining  a  supply  of  water  for  the  city,  he 
cannot  be  compelled  to  pay  a  fixed  water  rate,  if  he  does 
not  use  the  water  because  the  water  pipe  pass  along  side  of 
his  premises.  The  water  rates  paid  by  consumers  are  in 
no  sense  taxes,  but  are  nothing  more  than  the  price  paid  for 
water  as  a  commodity,  just  as  similar  rates  are  payable  to 
gas  companies,  or  to  private  water  works,  for  their  supply 
of  gas  or  water.  No  one  can  be  compelled  to  take  water 
unless  he  chooses,  and  the  lien,  though  it  may  be  enforced 
in  the  same  way  as  a  lien  for  taxes,  is  really  a  lien  for  an 
indebtedness,  like  that  enforced  on  mechanics  contract  or 
against  ships  and  vessels.  A  burden  so  levied  cannot 
come  within  the  class  of  local  assessments  whereby  local 

26.     Mitchell      v.      Negaunee,      149;    State    v.    Toledo,   48    Ohio 
113  Mich.  359,  quoting  from  150      St.  112. 

Mass.  592;  Rushville  Gas  Co.  v.  27.  Lombard  v.  Stearns,  4 
Rushville,  121  Ind.  206;  Craw-  Cush.  60. 

fordsville    v.   Braden,    130    Ind.         28.     Attorney  General  v.  Bur- 

rcll,  31    Mich.  25. 


Ji'.l  THE    LAW    OF    TAXATION  12 

expenditures  for  certain  purposes  are  divided  among  the 
various  premises  in  the  district  benefited. 

It  is  a  serious  question  how  far  the  legislature  can  fix 
a  definite  and  unchangeable  amount  of  taxation  for  purely 
local  purposes  coming  within  no  purpose  in  which  the  state 
or  public  lias  any  concern.  While  the  state  is  concerned  in 
education  and  in  those  matters  which  relate  to  the  peace 
and  good  order  of  the  community,  it  has  no  very  direct 
interest  in  local  improvements.  A  fixed  water  rate  imposed 
on  parties  not  using  the  water,  not  as  a  percentage  on 
property,  but  as  a  charge  on  a  limited  portion  of  the 
property  which  fronts  on  the  streets,  is  beyond  the  power 
of  the  legislature  under  the  rules  applicable  to  general 
taxation  for  any  purpose,  whether  local  or  of  universal 
concern29. 

§9.     Purpose  of  Tax  for  Bonuses  for  Railroads. 

It  is  not  in  the  power  of  the  state,  under  the  name  of 
bounty  or  any  other  cover  or  subterfuge,  to  furnish  capital 
to  set  private  parties  up  in  any  kind  of  business,  or  to 
subsidize  the  business  after  they  have  entered  upon  it.  A 
bounty  law  of  which  this  is  the  real  nature  is  void,  what- 
ever may  be  the  pretenses  on  which  it  was  enacted.  The 
discrimination  by  the  state  between  different  classes  of 
occupations  is  not  legitimate  legislation,  and  is  an  invasion 
of  that  equality  of  right  and  privilege  which  is  a  maxim 
in  state  government.  It  is  not  the  business  of  the  state  to 
make  discriminations  in  favor  of  one  class  against  another. 
The  state  can  have  no  favorites.  It  cannot  compel  an  un- 
willing minority  to  submit  to  taxation  in  order  that  it 
may  keep  upon  its  feet  any  business  that  cannot  stand  alone. 

29.     Jones    v.    Water    Com'rs,      34   Mich.   273,  275. 


13  THE  TAXING  POWER  §10 

It  follows  that  what  the  state  as  a  political  community  can- 
not do,  it  cannot  authorize  inferior  municipalities  to  do30. 
Municipal  corporations  have,  therefore,  no  authority  in 
return  for,  or  upon  the  basis  of,  the  incidental  benefits 
anticipated,  to  exercise  the  power  of  taxation  in  favor  of 
railroad  companies  or  others;  and  bonds  issued  by  way  of 
such  aid,  being  incipient  steps  leading  to  taxation  are  un- 
authorized31. 


Purpose  of  Tax  for  Bonuses  for  Factories. 

The  municipality  cannot  make  a  direct  gift  to  persons 
or  corporations  for  private  purposes,  nor  can  it  make  im- 
provements for  an  alleged  public  purpose,  when  the  real 
purpose  is  to  aid  a  private  enterprise32.  Where  a  bounty 
had  been  earned,  the  court,  without  discussion,  ordered  it 
paid,  as  a  vested  right33.  A  bonus  by  a  municipality  being 
illegal  and  beyond  its  power  to  grant,  an  action  will  lie 
by  the  municipality  to  recover  money  so  paid  over34. 

30.  Detroit  etc.  Ry.  v.  Salem,  32.     Board    of   Supervisors   v. 
20  Mich.  452,  486.  Mentor  Twp.,  94  Mich.  386.     In 

31.  Bay  City  v.  State  Treas-  Clee  v;  Saunders,  74  Mich.  692, 
urer,   23    Mich.   499;   Thomas   v.  the   municipality  agreed   to   ex- 
Port     Huron,     27     Mich.     320;  pend     $1,200.00    in     draining    a 
Dodge    v.    Van     Buren    Judge,  marsh      and     improving     high- 
118  Mich.  189;  Cedar  Springs  v.  ways     around     the        site     for 
Schlich,  81  Mich.  405.     In  Mich,  a      factory      in      consideration 
Sugar    Co.    v.    Auditor    General,  of    its     locating     there.       Held, 
124    Mich.   674,   the   payment   of  that    the    tax    was    illegal.      In 
a    statutory   bounty   to   a   sugar  Davis    v.    Board    of   Ontanogon 
company     is     held     unconstitu-  Co.,  64  Mich.  404,   a  grant  of  a 
tional.     In  Taylor  v.   Ypsilanti,  bonus     to    a    contractor    on    a 
105  U.  S.  60;  East  Saginaw  Mfg  state    road    was    held   illegal. 
Co.   v.    East   Saginaw,   19   Mich.  33.     East  Saginaw  etc.  Co..  v. 
259,  and  in   People  v.  Auditors,  State  Auditor.  9  Mich.  327;  but 
59    Mich.    327,    reviewed    in    13  in   Mich.   Sugar   Co.  v.   Auditor 
Wall.  373,  a  bounty  to  salt  pro-  General,   124    Mich.  674.   such   a 
ducers     was     upheld;     but     the  bounty  is  held  unconstitutional. 
question      of      constitutionality  34.     Morrice    Village    v.    Sut- 
was  not  raised.  ton,  139   Mich.  643. 

See  §3,  supra. 


§§11,    12  THE    LAW    OF    TAXATION  14 

§11.     Purpose  of  Tax  for  Street  Railways. 

The  ownership  of  a  street  railway,  partly  within  and 
partly  without  the  corporate  limits  of  a  municipality  is 
not  such  a  public  improvement  as  will  support  a  tax  there- 
for, and  it  is  beyond  the  corporate  powers  of  the  muni- 
cipality to  operate  such  a  railway38. 

§12.     Uniformity  of  Tax. 

The  constitution  declares,  "The  legislature  shall  provide 
a  uniform  rule  of  taxation,  except  on  property  paying 
specific  taxes,  and  taxes  shall  be  levied  on  such  property 
as  shall  be  prescribed  by  law."  The  law  enjoins  a  just 
principle  of  equality  in  regard  to  all  public  burdens,  and 
prescribes  a  limit  to  the  exercise  of  the  taxing  power,  that 
common  burdens  should  be  sustained  by  common  contri- 
butions, regulated  by  somes  fixed  general  rule,  and 
apportioned  according  to  some  uniform  ratio  of  equality36. 
The  design  of  the  foregoing  provision  was  to  secure  to 
every  portion  of  the  state,  and  to  every  class  of  property 
taxed,  a  uniform  rate,  to  secure  equality,  so  that  property 
in  one  quarter  should  not  be  taxed  at  a  higher  rate  than  in 
another,  or  the  same  kind  taxed  unequally. 

The  legislature  has  the  power  of  prescribing  the  subjects 
of  taxation,  and  of  exemption,  but  it  cannot  arbitrarily 
tax  property  according  to  location,  kind  or  quality,  without 

35.     In    Attorney    General    v.  St.    14,    a    contrary    doctrine    is 

Pingree.     120     Mich.    550,    it    is  upheld. 

held  that  Act  No.  338  of  Local  See    §§352,    353,    354,    post,    as 

Acts  of  1899,  providing  for  such  to     special     assessments.       The 

a    railroad,    is    unconstitutional  constitutional  provisions  do  not 

upon  the  ground  that  it  was  an  apply  to  such  taxes, 

attempt    to    engage    in    making  36.     Const,  of  1850,  Art.  XIV, 

internal,  improvements.     In  Sun  §11,    Beecher's    Const,    of    1908, 

Printing    etc.     Ass'n.     v-     New  Art.  X,  §3,  Williams  v.  Detroit, 

York,    152     N.   Y.    257,    and   in  2   Mich.  560,  570. 
Walker    v.    Cincinnati,    21    Ohio 


1  5  THE  TAXING  POWER  i  1  .' 

regard  to  value,  but  in  this  respect  it  must  act  by  uniform 
rule.  To  exempt  property,  as  in  the  case  of  church,  school 
or  library  property,  or  to  remit  taxes  for  any  cause,  has 
nothing  to  do  with  the  uniformity  of  taxation37. 

Double  taxation  is  not  uniformity;  but  because  the  same 
values  may  be  taxed  in  different  states,  as  property  in  one 
state  and  credits  in  another,  it  affords  no  legal  reason  for 
omitting  either  from  taxation38.  But  the  omission  of  a 
considerable  portion  of  the  taxing  district  from  the  assess- 
ing rolls  renders  the  entire  tax  of  that  district  void  for 
lack  of  uniformity39.  The  tax  may  be  unequal  and  unjust 
because  not  levied  in  proportion  to  the  business  done.  It 
may  possibly  be  true  that  an  apportionment  according  to 
the  business  done  would  have  been  more  just,  but  a  question 
of  this  nature  concerns  the  legislature  and  not  the  court. 
Courts  annul  tax  laws  because  of  their  operating  unequally 
and  unjustly40. 

The  legislature  has  the  power  of  dividing  objects  of 
taxation  into  classes.  It  may  tax  a  foreign  corporation 
more  than  a  domestic  for  doing  business  within  the  state. 
The  law  as  to  uniformity  merely  obliges  the  legislature  to 
impose  an  equal  burden  upon  all  who  find  themselves  in  the 
same  class41. 


37.     People    v.    Auditor    Gen-  38.     Attorney        General        v. 

eral,  7  Mich.  84,  89.     In  Wood-  Supervisors,  71  Mich.  16;  Stand* 

bridge   v.   Detroit.   8   Mich.  274,  ard   Life  Ins.   Co.  v.   Assessors, 

it  is  held  that  this  provision  of  95   Mich.  466. 

the  constitution  does  not  apply  39.     Mich.    Land    etc.    Co.    v. 

to      special      assessments,      and  Republic   Twp.,  65  Mich.  628. 

that  a  provision  putting  the  en-  40.     Youngblood    v.      Sexton, 

tire      expense      upon      abutting  32  Mich.  406;   Bacon  v.  Com'rs, 
owners,    each    paying    the    cost    .  126  Mich.  22,  26. 

opposite   his   lot.   is   valid.     But  41.     Bacon     v.     Com'rs,     126 

this   seems   to  be   over-ruled   in  Mich.   22,   26;    Ins.   Co.   v.    New 

Moetz  v.  Detroit,  18  Mich.  495,  Orleans,  1  Woods  85.  89;  State 

523.  v.   Lathrop.   10  La.   Ann.  402. 


§13  THE    LAW    OF    TAXATION  16 

§13.     Uniformity  as  Affected  by  Location. 

A  tax  cannot  be  imposed  upon  one  township  for  the 
benefit  of  another  township.  An  arbitrary  selection  of  an 
assessing  district  cannot  be  made  by  those  in  authority, 
without  regard  to  the  benefits  to  be  derived ;  and  one  which 
excludes  territory  which  admittedly  receives  greater  benefit 
than  that  which  is  included,  is  illegal42. 

The  control  of  the  state  in  regard  to  taxation  is  certainly 
very  great,  but  it  is  by  no  means  unlimited,  and  it  cannot 
be  exercised  in  an  arbitrary  manner,  nor  without  regard  to 
those  principles  of  justice  and  equality  on  which  it  is  based. 
It  is  of  the  essence  of  all  taxation  that  it  should  compel  the 
discharge  of  the  burden  by  those  upon  whom  it  rests;  and 
if  the  state  should  attempt  to  compel  any  single  county  to 
pay  the  salaries  of  the  state  officers,  or  the  expenses  of  the 
legislature,  no  one  would  for  a  moment  doubt  that  the  act 
would  be  unconstitutional43.  By  taxation  is  meant  a 
certain  method  of  raising  revenue  for  a  public  purpose  in 
which  the  community  that  pays  it  has  an  interest. 

An  act  of  the  legislature  authorizing  contributions  to  be 
levied  for  a  mere  private  purpose,  is  one  in  which  the 
people  from  whom  they  are  exacted  have  no  interest.  It 
would  not  be  a  law  but  a  sentence  commanding  the 
periodical  payment  of  a  certain  sum  by  one  portion  or 
class  of  people  to  another44. 

42.     In   Manistee  Lumber  Co.  43.     Ryerson      v.      Utely,     16 

v.    Springfield    Twp,    92     Mich.  Mich.  269. 

277,  Local  Act  No.  294  of  Pub-  44.     Sharpless   v.    Mayor   etc., 

lie  Acts  of  1891,  is  held  uncon-  21   Pa.  St.   147;   Dorgan  v.   Bos- 

stitutional    in    that    it  provides  ton,  12  Allen  223;   in  Taylor  v. 

for    the    expending    of    highway  Youngs,  48  Mich.  269,  it  is  held 

taxes    in    one    township    which,  that  land  cannot  be  assessed  in 

were    to    be    raised    by    another  a    different    township   than    the 

township.      McFarlan    v.    Cedar  one     in     which     it     is     situated, 

Creek  Twp,  93  Mich.  558.  though    it   was   not   assessed   in 

the   home  township. 


K  THE  TAXING  POWER  1.10 

$14.     Double  Taxation. 

It  is  against  the  spirit  of  our  laws,  and  no  statute  will 
be  construed  to  impose  double  taxation  unless  required  by 
express  words  or  necessary  implication.  Yet,  when  it 
contravenes  no  constitutional  provision,  the  court  cannot 
declare  it  illegal.  The  fact  that  the  same  value  is  twice 
taxed  does  not  render  it  void.  Property  may  be  taxed  in 
one  locality  or  state,  and  credits,  as  mortgages,  based  upon 
that  property  may  be  taxed  in  another  locality45. 

For  the  purpose  of  taxation,  however,  a  corporation  and 
its  stockholders  residing  in  this  state  are  not  different 
persons,  where  the  corporate  property  is  situated  within, 
and  taxed  in,  this  state,  although  it  is  a  foreign  corpor- 
ation46. The  language  of  the  statute,  in  reference  to  taking 
shares  of  stock  in  foreign  corporations,  where  part  of  the 
property  is  in  this  state,  does  not  suggest  a  rule  of  taxation 
not  uniform.  Taxing  shares  of  stock  of  such  companies 
held  by  residents  within  the  state,  is  not  considered  double 
taxation,  nor  unconstitutional47. 

§15.     License. 

It  has  always  been  considered  improper  to  pass  by-laws 
in  restraint  of  trade,  as  tending  to  discourage  enterprise 
and  to  create  monopolies.  But  it  has  been  seen  for  centuries 
that  certain  classes  of  business, — not  held  unlawful  in 


45.    C.  L.  53831  subd.  5,  Attor-  are  taxed  on  personal  property 

ney   General   v.   Supervisors,   71  for  the  money  which  went  into 

Mich.  16,  22;  People  v.  Rhodes,  the     mortgages,     is     held     not 

15  111.  305;   People  v.  Wharten-  double    taxation,    it    being    only 

by,    38    Cal.    461.      In    Common  an  indirect  result. 

Council   v.   Assessors,  91   Mich.  46.     Stroh      v.      Detroit,      131 

78,  95,  the   fact   that  mortgages  Mich.   109. 

in  which  a  savings  bank  has  in-  47.     Theall     v.     Guiney,      141 

vested   its   capital,  are   taxed  as  Mich.   392. 
real   estate,   and   the    depositors 


§15  THE  LAW   OF  TAXATION  18 

themselves, — gave  facilities  for  unlawful  conduct,  and 
allowed  action  dangerous  to  the  public.  Such  callings  have 
always  been  held  to  require  some  regulation  to  prevent 
their  abuse.  All  places  of  general  resort  for  amusement  or 
refreshment  are  liable  to  harbor  dangerous  persons,  and 
to  furnish  opportunities  for  combinations,  and  for  breaches 
of  the  peace,  and  if  crowded,  for  thefts  and  outrages. 

The  license  system  has  always  been  found  desirable  to 
bring  these  callings — so  readily  capable  of  abuse — within 
more  effectual  control,  in  order  that  crime  may  be  prevented 
or  detected,  and  disorder  checked.  A  license  fee  is  in  the 
nature  of  a  specific  tax  upon  business48. 

A  tax  on  business  of  a  specific  annual  sum  is  not  a  state 
specific  tax  when  it  is  assessed  and  collected  locally  and 
appropriated  to  local  purposes,  though  collected  under  a 
general  state  law.  It  is  not  a  valid  objection  to  the  tax 
because  it  is  not  assessed  in  proportion  to  the  business  done, 
or  that  its  operation  is  not  just.  Such  a  tax  does  not 
necessarily  license  or  approve  a  business,  since  it  is  com- 
petent to  tax  an  illegal  business49.  A  license  is  not  a  tax; 
and  unless  otherwise  provided,  does  not  require  a  two- 
thirds  vote50. 


48.     In  Kitson  v.   Mayor  etc.,  a    drinking    saloon,    distinguish- 

26    Mich.    325,    328,    it   is    held  ing  it  from  26  Mich.  325,  supra, 

competent   for   the   municipality  in    that    that    ordinance    applied 

to      impose      a      license      upon  to     all     saloons,     whether     for 

saloons.      In    People    v.    Blom,  drinking  or  eating. 

120   Mich.   45,  a   city  license   of  49.     Youngblood     v.     Sexton, 

$300.00,      in      addition      to      the  32    Mich.    406.      In    Sherlock    v. 

license    provided    by    the    state  Stuart,  96   Mich.   193,  it  is  held 

law  for  selling  liquors  at  retail,  that   the  legislature  may  confer 

was   held   reasonable   and  valid.  upon  the  municipality  the  right 

In    Dewar   v.    People,    40    Mich.  to     determine     where     a    saloon 

401,    it    is   held    that   under    §47,  may  be  located,  and  the  fitness 

Art.    IV     of     the     Constitution  of  the  person   to  engage  in  the 

(which    was    repealed    in    1876),  business. 

the   legislature   could   not   auth-  50.    Kenaston     v.     Riker,     176 

orize    a    municipality    to    license  Mich.  163. 


19  THE  TAXING  POWER  ?  1 .". 

The  exaction  of  a  license  tax  as  a  condition  of  doing  any 
particular  business  is  a  tax  on  the  occupation;  and  a  tax 
on  the  occupation  of  doing  the  business  is  a  tax  on  the 
business.  It  is  clear,  therefore,  that  this  license  tax  is  not 
a  mere  police  regulation,  simply  inconveniencing  one 
engaged  in  interstate  commerce,  but  is  a  direct  charge  and 
burden  on  that  business;  and,  if  a  state  may  lawfully  exact 
it,  it  may  increase  the  amount  of  the  exaction  until  all 
interstate  commerce  in  this  mode  ceases  to  be  possible51. 

It  is  not  within  the  power  of  the  legislature  to  deprive 
any  of  the  people  of  equal  privileges  under  the  law,  nor  to 
give  to  municipal  bodies  power  to  enact  ordinances  that 
would  accomplish  the  same  result.  The  legislature  cannot 
prohibit,  nor  can  the  municipality  require  its  consent  for 
an  orderly  parade  upon  the  streets52.  Where  the  legislature 
confers  express  powers  to  pass  ordinances  of  a  specified  and 
defined  nature,  such  an  ordinance,  if  not  prohibited  by  the 
constitution,  will  not  be  held  unreasonable.  But  where  the 
power  to  legislate  on  a  given  subject  is  conferred,  but  the 
mode  of  its  exercise  is  not  prescribed,  then  the  ordinance 
passed  in  pursuance  thereof  must  be  a  reasonable  exercise 
of  the  power,  or  it  will  be  pronounced  invalid.  Thus,  a 
city  ordinance  prohibiting  the  circulation  of  hand  bills 
upon  the  streets,  is  unreasonable53.  In  a  clear  case  of  an 
invasion  of  peoples  rights,  by  an  ordinance,  a  writ  of 
prohibition  will  issue  where  delay,  occasioned  by  turning 
the  parties  affected  over  to  persecuting  persecutions,  would 
entail  serious  financial  loss54. 

51.  Leloup  v.  Mobile,  127  U.  54.     Hughes        v.        Recorders 
S.  640;  Robbins  v.  Taxing  Dist.,  Court   Judge,   75   Mich.    574;    the 
120  U.  S.  489.  ordinance     prevented     sales     of 

52.  Matter      of     Frazee,     63  produce  except  from  stalls  from 
Mich.  396.  the  central  market,  thus  giving 

53.  People   v.   Armstrong,   73  the  stall  holders  a  monopoly  of 
Mich.  288,  293.  the   market. 


§15  THE    LAW    OF    TAXATION  20 

Under  the  power  to  regulate  a  business,  the  municipality 
may  not  prohibit  it;  and  many  illustrations  of  the  exercise 
of  this  power  are  afforded.  Under  a  general  power  to 
regulate  the  use  and  enjoyment  of  the  streets,  the  council 
may  require  the  consent  of  the  Mayor  for  the  use  of  the 
streets  to  make  an  address55.  An  ordinance  may  define 
garbage  as  all  refuse  matter  attending  the  preparation  or 
storing  of  any  food,  and  may  prevent  its  sale;  since  such 
subject  matter  is  in  no  sense  a  trade,  business,  or  occupa- 
tion56. An  ordinance  prohibiting  the  depositing  of  refuse 
in  an  alley,  is  valid57.  Under  a  general  power  of  control 
and  management,  a  park  commission  may  impose  a  $2.00 
license  fee  upon  the  drivers  of  public  vehicles58.  A  munici- 
pality, in  passing  an  ordinance,  cannot  exceed  the  powers 
conferred;  as  where  it  attempts  to  impose  a  penalty  for 
selling  impure  meats,  instead  of  for  knowingly  selling  im- 
pure meats59. 

The  general  rule  is  well  established  that  courts  will  not 
inquire  into  the  motive  of  legislators  where  they  possess 
the  power  to  do  the  act,  arid  it  has  been  exercised  as  pre- 
scribed by  the  organic  law.  It  therefore  follows  that  an 
ordinance  cannot  be  impeached  by  showing  the  fraudulent 
motives  of  the  members  of  the  council.  The  motives  of  the 
legislators,  considered  as  the  purposes  they  had  in  view, 
will  always  be  presumed  to  be  to  accomplish  that  which 
follows  as  the  natural  and  reasonable  effect  of  their  enact- 
ments. Their  motives,  considered  as  the  moral  inducements 
for  their  votes,  will  vary  with  the  different  members  of  the 


55.  Love    v.    Recorders    Court  57.  People     v.     Bennett,     83 
Judge.      128     Mich.      160;      Mt.  Mich.  457. 

Clemens  v.  Sherbert,  122  Mich.  58.  Kerrigan    v.     Poole,    131 

674.  Mich.  305. 

56.  Gd.   Rapids   v.    De   Vries,  59.  People  v.  Brill,  120  Mich. 
123   Mich.  570;   People  v.   Card-  42. 

ner,  136  Mich.  693. 


21  THE  TAXING  POWER 

legislative  body.  The  diverse  character  of  such  motives, 
and  the  impossibility  of  penetrating  into  the  hearts  of  men 
and  ascertaining  the  truth  precludes  all  such  inquiries  as 
impracticable  and  futile60.  Upon  the  foregoing  principle, 
neither  a  municipality,  nor  its  officers,  are  liable  for  a 
judicial  act  in  wilfully  refusing  to  approve  a  bond61. 

$16.     Uniformity  of  Charge. 

Not  only  can  no  distinction  be  made  between  residents 
of  the  state,  and  non-residents,  as  is  pointed  out  in  the 
following  section,  but  the  charge  itself  must  be  fixed  and 
definite,  applying  to  all  citizens  alike.  It  cannot  be  left 
to  the  discretion  of  a  committee  or  body  to  fix  one  charge 
for  one  person,  and  a  different  charge  for  another  person 
doing  the  same  business.  A  provision  whereby  a  council 
may  suspend  the  operation  of  an  ordinance  in  any  particular 
by  a  two-thirds  vote  is  unconstitutional,  since  its  provides 
for  discrimination  and  is  unequal  in  its  application  to  mem- 
bers of  the  same  class62.  Similarly,  a  license  fee  to  plumb 
a  house,  based  upon  a  percentage  of  the  cost  of  the  plumbing 
in  each  particular  case,  is  invalid,  the  apparant  object  being 
to  raise  money  to  meet  expenses  otherwise  provided  for63. 

60.  People     v.    Gardner,     143  tions    upon    which    the    license 
Mich.  104.  may  be  issued,  and  the  duration 

61.  Amperse    v.    Kalamazoo,  of  its  validity,  etc.     *     *     *     It 
75  Mich.  228  and  234.  is,   further   a   well   settled   prin- 

62.  Brown    v.    Circuit   Judge,  ciple  that  cities  cannot  discrim- 
145    Mich.    413,    construing    Act  inate   between  citizens   engaged 
214     of     Laws     of     1905;     Mt.  in    the    same    business;    that    if 
Clemens  v.  Sherbert,  122  Mich,  they   license,   they  must  license 
674,  the  Court  says:     "In  exer-  all  alike." 

cising  a  power  to  license  certain  63.     People     v.  Decker,     141 

occupations,  the  council  should  Mich.  304,  where  the  license  fee 

by   its   ordinance,   prescribe   the  was     2%     of  the  cost     up     to 

exact  occupation  to  be  licensed,  $500.00,    and    1%    of    the    cost 

the  amount  of  fee  to  be  charged  thereover,      with  a      minimum 

either  uniformly  or  by  a  reason-  charge    of  $1.00.  This  was    in 

able     classification-     the     condi-  Grand  Rapids. 


:j  1  1  THE    LAW     OF    TAXATION  22 

A  statute  may,  however,  incidentally  and  indirectly, 
impose  a  charge  which  affects  residents  and  non-residents 
unequally.  The  imposition  of  a  tax  of  $500.00  on  whole- 
sale liquor  dealers,  but  providing  that  manufacturers  shall 
pay  $65.00,  and  not  be  subject  to  the  wholesale  tax,  is  not 
invalid  as  discriminating  against  non-resident  manufact- 
urers since  a  resident  manufacturer  would  be  obliged  to 
pay  this  tax  if  he  established  a  depot  separate  from  his 
factory64. 

§17.     Inter-State  Commerce. 

The  municipality  may  be  granted  power  to  impose  a 
license  for  hawking  and  peddling,  whether  by  sample  or 
otherwise,  under  certain  constitutional  limitations.  In  so 
far  as  these  restrictions  affect  inter-state  commerce,  they 
are  in  violation  of  Art.  I,  §8,  of  the  Constitution  of  the 
United  States,  which  vests  in  congress  the  power  to  regulate 
commerce  among  the  several  states.  -  Therefore,  a  hawkers 
and  peddlers  license  cannot  be  exacted  from  an  agent  repre- 
senting a  foreign  company,  who  comes  within  this  state 
and  sells  goods  by  sample,  to  be  shipped  to  the  vendee  from 
outside  of  the  state65. 

It  is  undoubtedly  true  that  there  are  many  police  regu- 
lations which  do  affect  inter-state  commerce,  but  which 
have  been  and  will  be  sustained  as  clearly  within  the  power 
of  the  state;  but  it  must  be  considered,  in  view  of  a  long 
line  of  decisions,  that  it  is  settled  that  nothing  which  is 
a  direct  burden  upon  inter-state  commerce  can  be  imposed 
by  the  state  without  the  consent  of  congress66. 

64.    People     v.     Voorhis,     131          65.     People     v.     Bunker,     128 
Mich.     398,     construing     C.     L.      Mich.  160. 

§5379.  66.     Brennan      v.      Titusville, 

153  U.  S.  289. 


23  THE  TAXING  POWER  ?  1  • 

The  Federal  Constitution,  §2,  Art.  IV,  provides,  that 
"The  citizens  of  each  state  shall  be  entitled  to  all  of  the 
privileges  and  immunities  of  citizens  in  the  several  states." 
I'nder  this  provision,  the  person  paying  the  tax  or.  charge 
must  stand  upon  the  same  footing  as  the  resident,  both  as 
to  sales  made  and  quantity  sold.  Among  the  privileges  and 
immunities  reserved  is  that  of  being  exempt  in  other  states 
from  higher  taxes  and  impositions  than  are  paid  by  the 
citizens  of  such  other  states.  Under  this  provision,  while 
it  is  entirely  competent  to  lexy  taxes  upon'  the  business  or 
property  of  non-resident  traders  within  the  state,  it  is  not 
competent  to  require  them  to  take  out  a  license  and  pay 
therefor  a  greater  sum  than  is  demanded  of  residents67. 
A  license  or  tax  must  apply  equally  to  citizens  of  other 
states  as  well  as  to  citizens  of  this  state.  When  it  attempts 
to  discriminate  against  a  non-resident  of  the  state,  it  is 
void68. 

Upon  this  principle,  a  municipality  cannot  impose  a 
license  fee  upon  one  offering  goods  for  sale  by  sample  so 
far  as  it  applies  to  one  selling  goods  from  without  the 
state89.  Where,  however,  orders  are  solicited  and  not  sent 
out  of  the  state,  being  in  fact  filled  by  the  solicitor  himself, 
to  whom  the  goods  are  shipped  and  consigned,  such  a 
license  charge  is  constitutional70.  Liquor  from  another  state, 
may  be  sold  in  original  packages  here,  though  both  parties 
to  the  sale  live  in  this  state.  The  attempt  to  regulate  whole- 
sale sales  of  intoxicating  liquors  in  this  state,  by  non-resi- 
dents, is  unconstitutional;  C.  L.  §401871. 

67.  People     v.     Walling.     53         69.     People     v.     Bunker,     128 
Mich.    264,    269;    Gay  v.    Balti-      Mich.  160. 

more,   100  U.   S.   438;   Ward  v.         70.     Muskegon  v.  Zeeryp,  134 
Maryland,  12  Wall.  418.  Mich.   18;   Muskegon   v.   Hanes, 

68.  Rodgers     v.     Judge,     115      149  Mich.  460. 

Mich.  441;  Welton  v.  Missouri,         71.    Sloman    v.     Moebs     Co., 
91  U.  S.  275;  Walling  v.  Mich.      1:18  Mich.  334. 
116  U.  S.  464. 


§18  THE    LAW    OF    TAXATION  ^4 

The  statute,  C.  L.  §5379,  imposing  a  $500.00  license  fee 
on  the  wholesale  liquor  business,  but  providing  that  manu- 
facturers within  the  state  shall  pay  $65.00,  and  not  be 
subject -to  the  wholesale  tax,  is  valid.  It  does  not  discrim- 
inate against  non-resident  manufacturers  who  establish  a 
depot  in  this  state.  Any  manufacturer,  establishing  a  depot 
separate  from  his  factory,  would  be  obliged  to  pay  the 
wholesale  license  fee72. 

The  state  may  impose  a  tax  upon  liquors  brought  from 
one  state  into  another.  The  Federal  Constitution  prohibits 
the  states,  without  the  consent  of  congress,  from  laying 
any  tax  or  duties  on  imports  or  exports,  except  such  as 
may  be  absolutely  necessary  for  executing  its  inspection 
laws73.  The  duties  referred  to  in  this  section  relate  solely 
to  the  duties  upon  foreign  and  imported  articles,  and  do 
not  refer  to  taxes  upon  liquors  shipped  from  one  state  into 
another  and  there  sold,  or  to  special  taxes  which  grow 
out  of  the  internal  police  regulations  of  the  state.  The 
terms  "imports"  and  "exports"  refer  only  to  articles  im- 
ported from,  or  exported  to,  foreign  countries74. 

§18.     Ordinances  Must  be  Reasonable. 

Corporations  derive  all  of  their  power  from  legislative 
acts,  and  they  can  pass  no  ordinances  which  conflicts  with 
the  charter.  Where  the  legislature,  in  terms,  confers  upon 
a  municipal  corporation  the  power  to  pass  ordinances  of  a 
specified  and  defined  character,  if  the  power  thus  delegated 
be  not  in  conflict  with  the  constitution,  an  ordinance  passed 
pursuant  thereto  cannot  be  impeached  as  invalid  because  it 

72.  People    v.     Voorhis,     131  Mich.  264,  270;  Brown  v.  Mary- 
Mich.  398.  land,   12   Wheat.   454;   Woodruff 

73.  Par.   2,   §10,   Art.   I,   Fed-  vr  Parham,  8  Wall.  123;  License 
eral  Constitution.  Cases,  5  How.  59.1. 

74.  People     v.     Walling,     53 


THE  TAXING   POWER 


518 


would  have  been  regarded  as  unreasonable  if  it  had  been 
passed  under  the  incidental  power  of  the  corporation,  cr 
under  a  grant  of  power  general  in  its  nature.  What  the 
legislature  distinctly  says  may  be  done  will  not  be  set  asidt 
by  the  courts,  unless  in  conflict  with  the  constitution,  be- 
cause they  may  deem  it  unreasonable.  But  there  the  power 
to  legislate  on  a  given  subject  is  conferred,  and  the  mode 
of  its  exercise  is  not  prescribed,  then  the  ordinance  passed 
in  pursuance  thereof  must  be  a  reasonable  exercise  of  the 
power  or  it  will  be  pronounced  invalid75.  No  legislative 


75.  In  People  v.  Armstrong, 
73  Mich.  288,  an  ordinance  pro- 
hibiting the  circulation  of  busi- 
ness cards  is  held  not  author- 
ized by  the  legislature,  and  also 
unreasonable.  The  Court  says, 
"Laws  which  attempt  to  regu-  • 
late  and  restrain  our  conduct  in 
matters  of  mere  indifference, 
without  any  good  end  in  view, 
are  regulations  destructive  of 
liberty.  Under  our  constitution 
and  system  of  government  the 
object  and  aim  is  to  leave  the 
subject  entire  master  of  his  own 
conduct,  except  in  the  points 
wherein  the  public  good  re- 
quires some  direction  or  re- 
straint." In  Frazee's  Case,  63 
Mich.  396,  an  ordinance  pro- 
hibiting marching  or  parading 
upon  the  streets  without  the 
consent  of  the  Mayor  or  Com- 
mon Council,  under  a  penalty 
of  a  heavy  fine,  was  held  un- 
reasonable and  invalid  because 
it  suppressed  what  was,  in  gen- 
eral, perfectly  lawful,  and  left 
the  power  of  permitting  or  re- 
straining processions  to  an  un- 
regulated official  discretion.  In 
Chaddock  v.  Day,  75  Mich.  527, 
a  license  of  $10.00  per  month 
was  held  unreasonable  because 


its  apparant  purpose  was  to 
benefit  certain  tradesmen,  and 
was  not  a  legitimate  exercise  of 
the  police  power  for  the  benefit 
ol  the  public  health  or  to  pre- 
serve good  order.  This  case 
approves  Austin  v.  Murray,  16 
Pick.  126,  which  holds  that  the 
right  of  property  or  business 
cannot  be  invaded  under  the 
guise  of  the  police  power  when 
such  is  not  its  real  object.  In 
Brooks  v.  Mangan,  86  Mich. 
576.  an  ordinance  requiring  a 
pedler  to  pay  $10.00  per  day 
and  upwards  is  held  unreason- 
able. In  Saginaw  v.  Circuit 
Judge,  106  Mich.  32,  an  ordi- 
nance which  discriminated 
against  non-residents  is  held 
unreasonable  and  in  restraint  of 
trade.  In  Grand  Rapids  v. 
Braudy,  105  Mich.  670,  a  license 
fee  of  $25.00  to  $50.00  is  held 
reasonable.  In  People  v. 
Hotchkiss,  118  Mich.  59.  a 
license  fee  of  $5.00  for  peddling 
on  foot,  and  $25.00  for  peddling 
from  vehicles,  is  held  reason- 
able. 

In  Grand  Rapids  v.  Norman. 
110  Mich.  544,  a  license  fee  of 
$30.00  per  year  for  peddling,  is 
held  reasonable.  See  State  v. 


§18  THE    LAW    OF    TAXATION  2(5 

or  municipal  body  has  the  power  to  impose  the  duty  of 
performing  an  act  upon  any  person  which  it  is  impossible 
for  him  to  perform,  and  then  make  his  non-performance 
of  such  a  duty  a  crime.  Neither  can  the  legislature  impose 
a  duty  upon  the  citizen,  give  him  an  insufficient  time  to 
perform  it,  and  then  authorize  some  one  else  to  perform 
the  duty  for  him,  and  impose  a  tax  upon  him  for  the  cost76. 

Under  a  charter  provision  that  an  abutting  owner 
should  build  side  walks  pursuant  to  an  ordinance  the 
council  should  adopt,  the  municipality  cannot  impose  a  fine 
and  imprisonment  for  its  violation,  or  for  non-compliance 
on  ten  days  notice.  This  might  mean  imprisonment  for 
such  as  were  financially  unable  to  comply  with  the 
ordinance,  and  therefore  unconstitutional77.  A  city 
ordinance  suppressing  smoke  and  foul  odors,  as  a  nuisance, 
is  valid,  although  the  statute  likewise  provides  for  the  con- 
viction and  punishment  of  those  guilty  of  a  like  offense78. 

A  power  to  regulate  does  not  give  a  power  to  prohibit. 
The  license  may  fix  a  reasonable  license  fee,  only,  open  to 
all  citizens.  The  license  only  applies  to  the  particular  busi- 

French,  30  L.   R.  A.  415   (Mon-  sing.  53  Mich.  367,  a  city  license 

tana.)  of  $100.00  upon  saloons  not  sell- 

In      People      v.      Baker,      115  ing  intoxicating  liquors,  is  held 

Mich.    199,   a   weekly   license   of  reasonable. 

$5.00    for   peddlers    is    held    rea-  In     Gd.     Rapids    v.     Norman, 

sonable.     In   Muskegon  v.   Zee-  no   Mich.   544,   a   power  to  tax 

ryp,  134  Mich.  181,  a  charge  for  at    the    rate    of    $15.00   per    day, 

a  peddlers  license  of  $10.00  for  and  not  over  $30.00  per  year,  is 

one    week    and    $50.00    for  one  held  reasonable, 

year,  is  held  reasonable.  76.     Auditor  General  v.  Hoff- 

In  People  v.  Blom,  120  Mich.  man,  129  Mich.  541,  holding  a 
45,  a  city  license  of  $300.00  for  limit  of  five  days  in  which  to 
retailing  intoxicating  liquors,  is  build  a  sidewalk,  unreason- 
held  reasonable  and  valid;  but  able. 

in  Kenasten  v.  Riker,  146  Mich.  77.     Port     Huron    v.    Jenkin- 

163.  a  $500.00  city  license  upon  son,  77  Mich.  414. 

saloons        where        intoxicating  78.     People     v.     White     Lead 

liquors  are  not  sold,  is  held  un-  Wks,  82  Mich.  471. 
reasonable.      In    Wolf    v.   Lan- 


THE  TAXING  POWER  ?  I1' 

ness  or  articles  defined;  it  cannot  leave  certain  articles,  as 
tea,  to  be  regulated  on  application  to  the  council79.  An 
ordinance  which  provides  for  an  annual  inspection  of  light 
poles  to  see  if  they  are  secure,  charging  50  cents  per  pole 
per  year  therefore,  is  unreasonable  and  void,  being  an 
evident  intent  to  furnish  revenue  and  not  merely  to  defray 
the  expense  of  a  reasonable  inspection80.  Authority  to 
the  board  of  health  to  promulgate  rules  in  reference  to 
plumbing,  and  to  charge  each  plumber  a  license  fee  of  two 
dollars,  does  not  support  a  right  to  require  a  fee  for  each 
work,  based  upon  a  percentage  of  the  cost  of  such  work81. 
An  ordinance  which  provides  a  fine  and  imprisonment  for 
its  violation,  and  in  addition  thereto,  the  forfeiture  of  the 
applicants  business  is  an  unusual,  unreasonable  and 
excessive  punishment,  and  unconstitutional  for  that 
reason82. 

§19.     License  for  Trading. 

A  municipality  has  the  power  to  regulate  the  sale  of 
meats  and  vegetables,  and  to  prescribe  the  limits  within 
which  the  trade  or  calling  shall  be  carried  on  without  a 
license.  It  may  require  a  bond  for  protection  and  regu- 
lation, and  may  require  such  reasonable  fee  as  will  com- 
pensate either  partially  or  fully  for  the  additional  expense 
of  inspection  and  regulation  therein  incurred.  An  ordinance 
of  this  kind  is  not  against  common  right,  nor  in  restraint 
of  trade83. 


79.  Mt.  Clemens  v.  Sherbert,  Mich.     549;     Luton     v.     Circuit 
122   Mich.  674.  Judge,  69   Mich.  610. 

80.  Saginaw  v.  Swift  Electric  83.     In     Ash     v.     People,     11 
Light  Co.,  113  Mich.  660.  Mich.  347,  a  license  fee  of  $5.00 

81.  People     v.     Decker,     141  was   held   reasonable.     In   Peo- 
Mich.  304.  pie  v.   Baker,  115  Mich.  199,  an 

82.  Robinson     v.     Minor,    68  ordinance   which   requires  a  fee 


§19  THE    LAW    OF    TAXATION  28 

The  regulations  of  hawkers  and  peddlers  is  important 
if  not  absolutely  essential,  and  is  established  by  the  con- 
curring practice  of  the  civilized  states.  Peddlers  are  a 
class  of  persons  who  travel  from  place  to  place  among 
strangers,  and  the  business  may  easily  be  made  a  pretense 
or  a  convenience  to  those  whose  real  purpose  is  theft  or 
fraud.  The  requirement  of  a  license  gives  opportunity  for 
inquiry  into  antecedents  and  character,  and  the  payment  of 
a  fee  affords  some  evidence  that  the  business  is  not  a  mere 
pretense.  The  business  of  a  transient  dealer,  however,  is 
subjected  to  the  payment  of  a  fee,  must  be  with  a  view  to 
taxation,  or  to  cover  the  expense  of  regulation  under  the 
police  power84.  Act  204,  Public  Acts  of  1895,  applied  to  the 
upper  peninsula;  Act  137,  Public  Acts  of  1895  amending 
this  act  by  attempting  to  make  it  applicable  to  the  whole 
state  is  invalid.  (C.  L.  Chap.  136).  The  general  statute  is 
therefore  in  force.  Sec.  22,  which  prohibits  peddling  with- 
out a  license,  but  makes  an  exception  in  favor  of  wholesale 
merchants  who  sell  by  sample,  etc.,  and  of  farmers,  etc.,  is 

of  $5.00  per  week  for  peddling  on  horses,  is  held  excessive  and  in- 

foot   and   $25.00    for   peddling   is  valid.       In     Grand     Rapids     v. 

held    valid.     People   v.    Hatchkin,  Braudy,  105  Mich.  670,  it  is  held 

118  Mich.  59,  an  ordinance  which  within   the   legislative  power  of 

fixed  a  fee  of  five  dollars  for  ped-  a  municipality  to   require   pawn 

ling  on  foot  and  $25.00  for  ped-  brokers    to    keep    a   list    of  all 

ling  from  a  vehicle,  was  held  valid.  articles    purchased    and    exhibit 

In  Grand  Rapids  v.  Norman,  110  the    same    to  the    police.           In 

Mich.  544,  an  ordinance  requir-  Muskegon    v.  Zeeryp,    134    Mich, 

ing  a   license   fee    of   $30.00   for  18,     the     charge     of    $10.00     for 

peddling  is   held  not  unreason-  one     week,     and     $50.00     for     a 

able.     In   Chaddock  v.   Day,   75  year  for  certain   articles,  and  a 

Mich.    527,    a  charge    of    $10.00  graded  scale  of  $2.00  per  week 

per     month     for     selling     fresh  and    $25.00    per    year    for    other 

meat    in    a    village    is    held   un-  articles,     is     sustained.       Same 

reasonable    and    in    restraint    of  holding    as    Alma    v.    Clow,    146 

trade.       In    Brooks    v.   Mangan,  Mich.  443. 

86  Mich.  576,  a  charge  of  $10.00  84.     Saginaw  v.  Circuit  Judge, 

for  the   first  day,  and  $5.00  per  106  Mich.  32.  34;  People  v.  Rus- 

day    thereafter,     with     an    addi-  sell,  49  Mich.  619. 
tional    charge    for    the    use    of 


.  '  THE  TAXING  POWER 

not  class  legislation86.  The  fact  that  the  legislature  has 
passed  a  general  law  in  relation  to  hawking  and  peddling 
does  not  bar  a  municipality  from  also  imposing  a  local 
license86.  A  city  may  require  a  license  from  a  local  retail 
dealer,  where  he  solicits  from  house  to  house  and  takes 
orders  to  be  delivered  then  or  in  the  future87. 

£20.     Liquor  License. 

The  imposition  of  a  tax  upon  the  business  of  selling 
intoxicating  liquors  is  not  a  license,  and  is  not  in  violation 
of  Art.  IV.  §47,  of  the  State  Constitution,  which  prohibited 
any  act  authorizing  a  license  to  sell  intoxicating  liquors88. 
The  statute  does  not  create  or  authorize  the  business  but 
rather  assumes  its  existence  (whether  lawful  or  unlawful, 
can  make  no  difference),  and,  viewing  the  traffic  with  dis- 
favor, the  legislature,  as  has  the  law  making  power  of  every 
civilized  state  and  nation,  by  resort  to  police  power,  sought 
in  various  ways  to  prevent  and  restrain,  by  its  enactments, 
the  evil  effects  upon  the  state  and  society.  The  object  of 
the  statute  in  question89,  was  to  curtail  the  traffic,  show 
legislative  disapproval  and  to  ascertain  extent,  provide 
revenue  to  aid  in  ameliorating  the  evils  which  the  trade 
has  never  failed  to  entail  upon  the  community.  The 
excessive  use.  of  intoxicating  liquors  has  fallen  under 
universal  condemnation,  and  its  use  has  been  so  closely 
connected  with  its  abuse  as  to  render  legal  prohibition  or 
regulation  absolutely  necessary  for  the  protection  of  society. 

State  legislation  taxing  the  sale  of  intoxicating  liquors 
has  been  held  valid  and  constitutional,  under  the  police 

85.  People   v.   De   Blaay,  137          87.     Allport    v.     Murphy,    153 
Mich.    402;     People   v.    Sawyer,      Mich.   486. 

106  Mich.  428.  88.     This  section  was  stricken 

86.  Alma  v.  Clow,  146  Mich,      out  of  the  constitution  in   1876. 
443.  89.     H.    S.    551277-1280. 


§20  THE    LAW    OF    TAXATION  30 

power  of  the  state,  in  every  state  where  the  question  has 
been  raised,  and  in  the  Supreme  Court  of  the  United 
States80.  An  act  to  "provide  for  the  taxation  of  the  busi- 
ness of  manufacturing  and  selling"  liquors,  will  support 
a  direction  as  to  how  the  money  collected  shall  be  used91. 
C.  L.  §5379,  providing  for  an  annual  tax  of  $500.00  on 
wholesalers,  and  exempting  the  manufacturers  therefrom, 
is  constitutional.  The  exemption  of  the  manufacturer 
extends  only  to  sales  made  at  the  brewery.  Should  he  sell 
at  any  other  place,  he  would  have  to  pay  the  wholesalers 
tax  of  $500.009a.  A  city  ordinance  requiring  the  payment 
of  $500.00  license  to  the  city,  is  reasonable93.  A  city  can- 
not, however,  grant  a  license  for  a  longer  time  than  that 
provided  by  statute;  and  an  ordinance  attempting  to  do  so 
will  be  void94. 

It  is  not  in  the  power  of  a  council  to  permit  a  greater 
latitude  in  the  regulation  of  saloons,  than  the  statute 
authorizes;  as  to  allow  them  to  be  kept  open  for  a  longer 


90.  People     v.     Walling,     53  92.     People    v.     Voorhis,    131 
Mich.    264,    267;    Bartemeyer    v.  Mich.  398. 

Iowa,    18     Wall.     129;     License  93.     Wells      v.      Torrey,      144 

cases,    5    How.    504;    Gibbons    T.  Mich.    689;    Sherlock    v.    Stuart, 

Ogdon.   9    vvHieat.    205;    Passen-  96    Mich.    193:    People   v.    Blom, 

ger  cases,   7   How.   283.     Doran  120  Mich.  45.     In  Dool  v.  Cass- 

v.    Philips,    47    Mich.    228,   hold-  apolis,   42    Mich.   547,   it   is  held 

ing  that  the  liquor  tax  is  not  a  that    the    legislature    may    auth- 

mere  'debt,  but  a  condition  pre-  orize  the  municipality  to  levy  a 

cedent      to      making     sales      of  tax     in     respect     to  the     saloon 

liquor.     Its   primary  purpose   is  business;    but    where    notice    of 

not  for  revenue,  but  to  restrain  such    levy    is    required,    it    must 

the    sale    of    a    dangerous    com-  be    given.     An    ordinance,   how- 

modity.     Potter  v.    Homer  Vil-  ever,  providing  a  license  for  the 

lage,  58  Mich.  212,  sustains  the  sale     of     liquor     will   be     void 

right  of  the  legislature  to  deter-  where     the      charter     expressly 

mine     on     what     terms     liquors  prohibits     the     sale     of    liquor; 

shall    be    sold.      These    terms    the  Betts  v:  Reading,  93  Mich.  77. 

local  bodies   cannot   change.  94.     Albion      v.      Boldt,      145 

91.  Westenhausen      v.       The  Mich.  285 
People,    44    Mich.    269. 


:;i  THE  TAXING   POWER 

period  than  the  statute  provides05.  An  ordinance  providing 
that  no  person  shall  permit  drunkards,  intoxicated  persons, 
tipplers,  gamblers,  person  having  the  reputation  of  pros- 
titutes, or  other  disorderly  persons,  to  congregate  at  their 
place  is  unreasonable  and  void98 ;  but  an  ordinance  which 
provides  that  a  person  found  loitering  around  bar-rooms, 
day  or  night,  for  two  weeks,  without  a  satisfactory  reason, 
may  be  fined  and  imprisoned,  is  valid,  though  such  a  person 
at  common  law  may  not  be  a  disorderly  or  a  vagrant97. 
It  is  beyond  the  power  of  the  council  to  enlarge  the 
ordinary  meaning  of  the  word  "saloon,"  and  charge  a 
person  as  a  saloon  keeper  who  sells  liquor  at  private  houses. 
All  ordinances  for  the  suppression  of  saloons,  based  upon 
the  general  incorporation  act  of  1875-1883,  were  repealed 
by  the  liquor  law  of  188798.  Even  where  the  sale  of 
liquor  is  prohibited,  either  by  statute  or  the  constitution,  a 
municipality  may  license  saloons,  since  a  saloon  does  not 
necessarily  sell  intoxicating  liquors99.  Where  the  sale  is 
prohibited  by  the  constitution,  the  legislature  cannot 
authorize  an  ordinance  permitting  such  sales;  and  an 
ordinance  passed  while  such  a  provision  of  the  constitution 
was  in  effect,  will  not  be  given  life  by  a  subsequent  amend- 
ment of  the  constitution  striking  out  snch  prohibitive 
clause1. 


95.  People     v.     Furman,     85          1.     Dewar  v.  People,  40  Mich. 
Mich.     110,     construing    §17    of  401.     In   Fitzpatrick  v.  Weaver, 
Act  No.  313  of  1887.  147  Mich.  382.  a  city  of  the  4th 

96.  Grand     Rapids     v.     New-  class  is  held  not  to  have  power 
man,  111   Mich.   48.  to   impose   a   license   of   $300.00 

97.  In  re  Stegenga,  133  Mich.  for  running  a  saloon  where  in- 
56.  toxicating      liquors      are      sold, 

98.  Sparta    Village    v.     Boo-  since  the   charter  provides  that 
ram,   129   Mich.   555.  such  cities  shall  not  license  the 

99.  Wolf      v.      Lansing,      53  sale  of  such  liquors. 
Mich.  367. 


Ji-.'l  THE    LAW    OF    TAXATION  32 

§21.     Prescribing  Limits  of  Sale. 

The  charter  of  a  village  may  authorize  it  to  suppress 
saloons;  and:  such  ordinances  will  be  valid2.  Although  a 
village  council  may  have  authority  to  suppress  saloons,  it 
cannot  close  those  it  has  already  licensed,  nor  refuse  to 
grant  a  license  where  the  tax  money  has  been  paid  and  a 
bond  tendered,  because  it  subsequently  passed  an  ordinance 
suppressing  saloons3.  Where  the  power  to  regulate  and 
prescribe  the  location  of  saloons  is  given,  the  council  may 
establish  a  saloon  district4;  but  where  the  power  only  is 
given  to  regulate  or  suppress  them,  it  must  do  one  or  the 
other  in  toto,  it  cannot  regulate  them  in  one  part  of  the 
municipality  and  suppress  them  in  another  part5.  The 
legislature  may  establish  saloon  districts,  or  prohibit  the 
sale  of  liquor  in  certain  specified  districts.  It  becomes 
immaterial  that  the  principal  offered  his  tax  and  bond 
before  the  act  was  passed6. 

Act  No.  313  of  Public  Acts  of  1887,  does  not  apply  to 
sales  made  upon  public  waters,  beyond  the  shore  line  of  the 

2.  Post  v.  Sparta  Village,  58  C.    L.     §3107,     to     provide     for 
Mich.    212.      In    re    Hauck,    70  saloon      limits,      and      that      no 
Mich.  396,  it  is  held  that  an  act  license   shall  be  granted   except 
entitled  to  regulate  the  sale  of  in  those  limits;  Johnson  v.  Bes- 
liquor,  will  not  support  legisla-  semer    Council,    143    Mich,    313. 
tion    prohibiting"  its    sale,    and  In  White  v.  Bracelin,  144  Mich, 
that  Act  No.  197  of  the   Public  332,  it  is  held  competent  to  pro- 
Acts  of  1887  is  unconstitutional  vide    that    no    saloon    shall   be 
for  that  reason.  kept    open    within    100    rods    of 

3.  Warner  v.   Lawrence  Vil-  any  public  school.     In  Whitney 
lage,  62  Mich.  251.  v.    Gd.    Rapids,   Twp.    Board,  71 

4.  Johnson       v.        Bessemer  Mich.  234,  it  is  held  competent 
Council,    143    Mich.    313;    Sher-  to    prohibit    the   sale    of  liquor 
lock    v.     Stuart,    6     Mich.     193;  within  one  mile  of  the  soldier's 
Churchill     v.     Detroit     Council,  home.      The   principle    involved 
153  Mich.  96.  is  the  same  as  establishing  fire 

5.  Timm  v.  Caledonia.   Coun-  limits,     and     the     material     for 
cil,  149  Mich.  323.  building  to  be  used  within  such 

6.  Rose  v.  Ann  Arbor  Coun-  limits;    Micks     v.     Mason,     14S 
cil.  134  Mich.  102.     Cities  of  the  Mich.  212. 

4th     class     have    a    right    under 


88  THE  TAXING  POWER 

township7.  The  legislature  may  prohibit  the  sale  of  liquor 
to  Indians,  or  to  Indians  of  the  half  blood8.  It  is  also 
competent  to  provide  that  females  under  21  years  of  age 
shall  not  remain  in  or  about  a  saloon0.  The  legislature  may 
authorize  a  municipality  to  forbid,  by  ordinance,  the  em- 
ployment of  any  females  in  a  saloon,  or  forbid  females 
resorting  there  to  drink10. 

$22.     Ex  Post  Facto  Regulations. 

A  licensee  obtains  no  vested  rights  to  conduct  his  business 
during  the  life  of  the  license  obtained,  upon  the  same  con- 
ditions as  prevailed  when  the  license  was  granted.  The 
sovereign  power  of  taxation  and  police  powers  are  in- 
volved. They  are  state  powers,  residing  together  and 
capable  of  harmonious  employment  to  effect  the  ends  of 
good  government.  Where  the  object  will  admit  the  co- 
operation of  their  energies  without  multifariousness,  there 
is  no  objection. 

A  saloon-keeper  carries  on  his  business  subject  to  the 
authority  and  duty  of  the  legislature  to  adopt  the  best 
means  which  its  wisdom  could  devise  to  protect  the  lives, 
health  and  property  of  the  citizens  and  maintain  good  order 
and  preserve  the  public  morals.  It  may,  therefore,  after 
the  license  has  been  taken  out,  lessen  the  number  of  days 
in  a  year  in  which  a  saloon  may  be  kept  open11. 

£23.     The  Liquor  Dealer.  % 

No  one  possesses  a  natural,  inalienable,  or  constitutional 
right  to  keep  a  saloon  for  the  sale  of  intoxicating  liquors. 

7.  People    v.     Bouchard.    82      (N.  S.)   1040. 

Mich.  157.  10.     People  v.   Case,   153   Mich. 

8.  People     v.     Gebhard.     150      98  and  cases  cited. 

Mich.   192.  11.     Reithmiller  v.    People.  44 

9.  State  v.  Baker,  13  L.  R.  A.      Mich.  280,  285. 
(Si 


§23  THE    LAW    OF    TAXATION  34 

To  sell  intoxicating  liquors  at  retail  is  not  a  natural  right 
to  pursue  an  ordinary  calling.  The  legislature  may 
determine  who  may  carry  on  the  business,  and  the  time 
when,  and  the  place  where,  it  may  be  carried  on.  It  is 
notorious  that  the  low,  the  vicious,  and  the  criminal  are 
often  engaged  in  it.  The  people,  under  our  constitution, 
have  the  right  to  prohibit  such  people  from  engaging  in  it. 
The  restrictions  and  conditions  upon  it  are  entirely  within 
the  discretion  of  the  people,  through  the  legislature.  The 
legislature  may  enact  that  only  reputable  persons  shall  be 
allowed  in  the  business,  and  may  authorize  the  muni- 
cipalities to  determine  the  question  of  fitness.  A  require- 
ment of  an  ordinance  that  the  applicant  should  be  recom- 
mended by  twelve  reputable  citizens,  and  be  of  good  moral 
character,  is  valid12'.  The  particular  qualifications  of  the 
dealer,  if  any  restrictions  are  imposed,  must  be  fixed  by  the 
legislature;  they  cannot  be  left  to  the  discretion  of  the 
municipality.  Where  a  municipality  required  that  the 
applicant  should  be  a  person  whose  character  and  habits 
would  not  render  him  unfit  for  the  business,  such  a  re- 
striction, though  authorized  by  statute,  was  held  uncon- 
stitutional, since  no  rule  of  guidance  had  been  fixed  and 
the  whole  matter  had  been  left  to  the  caprice  of  the  council. 
The  same  persons  were  to  be  the  judges  of  the  proper 
causes  of  rejection,  as  well  as  the  fitness  of  persons  under 

12.     Sherlock     v.     Stuart,     96  to    enact     this     ordinance     was 

Mich.   193;   in   People   v.   Blom,  based   upon   the   general   power 

120    Mich.    45.    an    ordinance   is  to    regulate    the    business.         In 

sustained     which     required     the  Wells  v.  Torrey,  144  Mich.  689, 

applicant  to  furnish  a  certificate  it  is  held  competent  to  require 

of   good   moral   character   from  a    payment    of    $500.00    to   the 

six    reputable    citizens,    and    to  city,    upon    an   application    ap- 

give  a  bond  in  the  sum  of  $2,-  proved  by  a  certain  number  01 

000.00  to   conform  to  the   ordi-  reputable  citizens, 
nance.     It  seems  that  the  power 


35  THE  TAXING  POWER  §23 

such  causes,  subjecting  every  one  to  the  mere  will  of  his 
neighbor13. 

A  single  sale  in  gross  does  not  constitute  a  dealer;  he  is 
one  who  makes  successive  sales14.  But  the  sale  of  a  single 
pint  of  liquor  constitutes  a  dealer  under  H.  S.  §227018.  A 
club  for  social  purposes  becomes  a  dealer  when  it  distributes 
liquor  among  its  members  by  the  glass,  the  money  going 
into  the  club  treasury16.  A  manufacturer  of  beer  has  no 
right  to  sell  his  own  product  at  retail,  without  paying  the 
retail  license17.  The  state  cannot  impose  a  tax  upon  a 
dealer  for  selling  beer  in  the  original  package,  which  was 
made  in  another  state,  and  shipped  here  and  stored  to  be 
sold,  since  such  tax  attempts  to  regulate  inter-state  com- 
merce18. A  druggist  who  sells  liquor  as  a  beverage  is  a 
retail  dealer  and  must  pay  the  retail  license19.  But  a  single 
sale  of  liquor  by  a  druggist  will  not  constitute  the  offense 
of  keeping  a  place  for  the  illegal  sale  of  liquor,  though  he 
may  be  guilty  of  illegally  selling  liquor20. 

Where  the  sale  of  liquor  is  prohibited,  either  by  the 
constitution  or  by  statute,  the  municipality  cannot  license 
a  liquor  dealer  to  engage  in  the  business ;  and  the  changing 
of  the  constitution  or  statute  will  not  give  life  to  a  formerly 
void  ordinance21.  Where,  however,  a  municipality  is 
authorized  to  grant  a  license,  and  the  dealer  has  paid  his 
tax  and  tendered  a  statutory  bond,  the  council  cannot  refuse 
to  issue  his  license  because  it  subsequently  prohibited  the 

13.  Robinson    v.     Minor,    68          18.     People   v.   Lyng,   10  Sup. 
Mich.  549  and  556.  Ct.     Rep.  725,     reversing     same 

14.  Averall      v.      Bizeau,     37      case  in  74  Mich.  579. 

Mich.  506.  19.     Luton    v.    Circuit    Judge, 

15.  People      v.      Kropp,      52      69  Mich.  610. 

Mich.  582.  20.     Maynard  v.  Eaton  Judge. 

16.  People  v.  Soule.  74  Mich.      108  Mich.  201. 

250.  21.     Dewar      v.      People,      40 

17.  People     v.     Gresser.     67      Mich.  401. 
Mich.  490. 


THE    LAW    OF    TAXATION  30 


sale  of  liquor  such  dealers  rights  had  become  fixed  and 
could  not  be  revoked  by  the  council22.  The  council  cannot 
refuse  to  renew  a  license  because  the  dealer  has  violated  the 
conditions  of  a  former  license,  unless  the  statute  expressly 
authorizes  such  action23. 

§24.     Liquor  Dealer's  Bond. 

The  council  is  the  sole  judge  of  the  sufficiency  of  the 
bond;  if  this  discretion  is  exercised  in  good  faith,  the 
result  will  not  be  reviewed  by  the  courts24.  If,  however, 
the  court  does  frame  issues,  and  finds  that  the  council  acted 
in  bad  faith,  and  that  the  sureties  are  sufficient,  a  writ  of 
mandamus  will  issue25.  It  must  clearly  appear  on  what 
grounds  the  council  rejected  the  offered  bond,  or  the  writ 
will  not  issue26.  The  council  will  be  compelled  to  approve 
a  bond  when  it  clearly  appears  that  the  statute  was  com- 
plied with.  If  a  bond  is  rejected,  the  objection  must  be 
stated,  and  a  speedy  opportunity  given  for  meeting  the 
objection27.  The  council  must  consider  the  personal,  as 

22.  Warner  v.  Lawrence  Vil-  is  not  bound  by  the  affidavit  of 
lage,  62  Mich.  251.  the  surety,  if  they  have  knowl- 

23.  Cox   v.   Jackson    Council,  edge   tending  to  show  the  con- 
152  Mich.  630.  trary:     Palmer    v.    Trustees    of 

24.  Divine    v.    Lakeview    Vil-  Hartford,     73    Mich.     96.       But 
lage.    121    Mich.    433.      In    Bailey  where    the     council     refuse,     in 
y.  Circuit  Judge,  128  Mich.  627,  good    faith    to    examine    a    liquor 
it   is    held    that    the    Court    will  bond  mandamus   will  be  to  corn- 
not   be    compelled   to   frame    an  pell  an  examination.     Hawkins  v. 
issue.     The    refusal    to   approve  Litchfield   Village,   120   Mich.  390. 
will     not    be    reviewed    on    the  25.     Farr     v.    Anderson,     135 
ground    that    there    was  an  in-  Mich.  485. 

sufficient     investigation.      Biggs  26.     Negley   v.    Sturgis    Coun- 

McKinley,     131     Mich.     154.  cil,    44    Mich.    1;    Goss    v.    Ve»- 

Where      it      appears     that     the  montville  Village.  44  Mich.  319; 

board   has   acted   in   good   faith,  Parker     v.     Portland     Trustees, 

a    mandamus    will    be    refused;  54  Mich.  308. 

Post  v.  Soarta  Board,  64  Mich.  27.     Potter  v.  Homer  Village, 

597;      McHenry      v.      Chippewa  59   Mich.   8,   12. 
Board,  65  Mich.  9.     The  council 


37  THE  TAXING  POWKR  i  .M 

well  as  the  real,  property  of  a  surety.  And  while  a  dealer 
may  not  have  an  unlimited  right  to  make  further  showings, 
he  has  some  rights28. 

A  provision  that  a  surety  should  not  be  engaged  in  the 
liquor  business,  either  as  principal  or  agent,  is  unconstitu- 
tional, inasmuch  as  it  deprives  a  person  of  his  right  to  use 
his  property  as  he  pleases.  It  is  also  contrary  to  the  14th 
amendment  to  the  constitution  of  the  United  States,  which 
provides  that  no  state  shall  abridge  the  privileges  or  im- 
munities of  citizens  of  the  United  States,  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the 
laws29.  A  provision,  however,  which  precludes  a  surety 
from  being  such  on  more  than  two  liquor  bonds,  is  valid80. 

Under  Act  No.  266  of  Public  Acts  of  issir,,  qualifying 
as  indemnity  company  to  go  upon  a  liquor  bond,  and  pro- 
viding1 that  the  certificate  of  the  commissioner  of  insurance 
shall  be  conclusive  proof  of  the  solvency  of  the  company, 
the  council  will  not  be  compelled  to  accept  a  foreign  cor- 
poration as  a  surety  when  they  have  honest  doubts  as  to 
its  solvency31.  A  bond  given  by  one  firm  does  not  inure 
to  the  benefit  of  its  successor,  although  one  of  the  members 
of  the  old  firm  may  remain  in  the  new  firm32.  The  council 
cannot  require  more  than  two  sureties,  though  the  dealer  has 
the  right  to  offer  a  greater  number33.  Where,  by  mistake, 
the  penalty  is  left  out  of  the  bond,  it  will  be  enforced  at 
the  lowest  statutory  penalty  where  the  sureties  have  justi- 
fied in  that  sum  and  the  statute  required  the  sureties  to 


28.  Post  v.  Sparta  Board,  63  31.     Schmitt  v.  Clinton  Coun- 
Mich.  323.  cil,  111   Mich.  99. 

29.  Kuhn  v.  Detroit  Council.  32.     Mathews  v.   Carman,  110 
70  Mich.  534.  Mich.    559. 

30.  Wolcott        v.        Superior  33.     Power   v.    Litchfield    Vil- 
Judge,  112  Mich.  311.  lage,  141  Mich.  350. 


THE    LAW    OF    TAXATION  38 


justify  at  the  penalty  of  the  bond34.  The  neglect  of  the 
sureties  to  justify  will  not  invalidate  the  bond35. 

The  liability  of  the  surety  attaches  on  the  approval  of 
the  bond;  and  he  is  estopped  from  denying  anything  re- 
cited therein.  They  remain  liable  for  the  year  for  which 
the  bond  was  filed  though  they  move  away38.  They  remain 
liable  during  a  subsequent  change  of  the  statute  in  so  far  as 
the  new  statute  contains  the  same  provisions  of  the  former 
law.  The  fact  that  the  surety  might  not  be  able  to  justify 
or  qualify  under  the  new  law  does  not  release  him  from 
the  bond37. 

Act  313  of  Public  Acts  of  1887  provided  grounds  on 
which  the  county  treasurer  might  demand  a  new  bond  ;  but 
no  method  of  procedure  was  prescribed  for  determining 
these  facts.  The  specified  causes  for  which  a  new  bond 
might  be  required  were  not  illegally  laid  down,  but  no 
method  was  provided  of  getting  at  the  facts  by  a  hearing 
before  any  one.  Such  important  powers  cannot  be  exer- 
cised by  the  county  treasurer  arbitrarily;  nor  can  he,  at 
his  discretion,  determine  the  proceedings  which  are  neces- 
sary to  give  him  jurisdiction  to  act.  These  proceedings  can 
only  be  determined  by  the  legislature38. 

Liquor  bonds  in  the  county  treasurer's  office  are  open  to 
public  inspection39.  A  mandamus  will  not  lie  at  the  in- 
stance of  a  private  individual  to  compel  an  inspection  of 
the  record  of  druggists  sales,  though  the  statute  provides 
for  such  right.  This  is  upon  the  principle  that  a  private 


34.  Garrison     v.     Steele,  46      Mich.  8. 

Mich.  98.  38.     Dunham     v.     Hough,     80 

35.  People     v.     Lanning,  73      Mich.   648;   Robinson   v.    Minor, 
Mich.   284.  68   Mich.   549. 

36.  Brockway    v.    Petted,  79          39.     Brown     v.      Knapp,      54 
Mich.   620.  Mich.   132. 

37.  Goulickson  v.   Gjourd,  89 


39  THE  TAXING  POWER  §25 

individual  cannot  use  this  writ  unless  he  is  peculiarly  in- 
terested40. 

The  county  treasurer's  bond  requires  him  to  account  for 
the  liquor  tax  collected  by  him41.  He  has  no  right,  how- 
ever, to  receive  the  tax  until  the  bond  has  been  filed42. 
Neither  the  municipality,  not  its  officers,  are  liable  for  a 
wilful  refusal  to  approve  a  bond,  since  it  is  a  judicial  act48. 
A  majority  vote  of  the  council  may  approve  a  bond44.  It 
is  competent  to  provide  that  a  municipality  may,  or  may 
not,  accept  a  surety  company's  bond,  at  its  discretion45. 

§25.     Collection  and  Payment  of  License. 

The  county  treasurer  is  the  agent  of  the  township  or 
city  in  collecting  the  liquor  tax,  and  the  county  is  not  liable 
therefor46.  The  primary  purpose  of  a  liquor  tax  is  not  to 
increase  the  revenues  of  a  locality  or  municipality,  but  to 
restrain  the  sales  of  a  dangerous  commodity,  and  to  con- 
fine them  in  the  hands  of  responsible  and  law  abiding  par- 
ties, who  can  make  good  the  claims  laid  upon  them.  The 
payment  of  the  money  to  a  municipality  is  resorted  to  as 
an  equitable  distribution,  somewhat  disproportioned  to  the 
mischief  likely  to  arise  from  the  traffic.  No  community 
has  the  right  to  determine  for  itself  whether  this  money 
shall  be  collected,  nor  to  change  the  charge  into  an  ordi- 
nary debt  by  taking  a  promissory  note  therefor.  The  tax 
is  not  a  debt,  but  a  condition  precedent  to  making  sales, 

40.  Thomas  v.  Hamilton,  101  45.     Inay       v.        Cheyboygan 
Mich.  387.  Judge,  150  Mich.  457.  construing 

41.  Marquette       County      v.  Local  Act  of  1907,  May  1st.   So, 
Ward,  50  Mich.  174.  House  enrolled  Act  183  of  1907, 

42.  Attorney       General       v.  permitting  the  Village  of  Perry 
Huebner.  91  Mich.  436;  Rode  v.  to      accept      Surety      Company 
Phelps,  80   Mich.  610.  bonds,   is   permissive;   Hicks   v. 

43.  Amperse    v.    Kalamazoo,  Perry  Village,  151   Mich.  88. 

75  Mich.  228  and  234.  46.     Marquette   Co.  v.   Dillon, 

44.  O'Halloran  v.  Mayor  etc.,      49  Mich.  844. 
107  Mich.  138. 


§26  THE    LAW    OF    TAXATION  40 

to  be  enforced  by  criminal  prosecution  if  necessary.  To 
change  the  demand  into  an  ordinary  debt  is  against  public 
policy47. 

The  right  of  the  municipality  to  the  liquor  tax  becomes 
vested  at  the  time  the  law  says  it  should  be  paid,  and  sub- 
sequent annexation  or  change  of  territory  will  not  change 
this  right48.  The  payment  of  a  liquor  tax  is  voluntary, 
and  like  the  voluntary  payment  of  any  other  tax,  cannot 
be  recovered  back  though  the  party  discontinues,  or  does 
not  go  into  the  business49.  The  treasurer  is  not  bound  to 
keep  a  written  record  of  those  who  pay  the  liquor  tax50, 
and  will  be  compelled  by  mandamus  to  pay  it  over  to  the 
proper  officer51. 

§26.     License  for  Ferries. 

This  tax  is  a  price  paid  for  a  franchise  or  public  right, 
vested  in  an  individual.  The  most  common  are  the  grant 
of  a  right  or  privilege  of  making  roads,  bridges,  establish- 
ing ferries,  and  taking  toll  for  the  use  of  the  same.  A 
ferry  is  a  public  highway  across  a  stream  of  water  by  boat 
instead  of  by  bridge.  It  is  as  clearly  a  creature  of  local 
legislation  as  is  a  road  or  bridge.  The  regulation  of  a 
ferry  does  not  interfere  with,  nor  is  it  a  part  of,  the  power 
of  congress  to  regulate  commerce  between  the  states  or 
with  foreign  nations52. 

47.  Doran      v.      Philips,      47      Curry  v.  Tawas  Twp,  81  Mich. 
Mich.    228.      In    Hatch   v.    Reid,      355. 

112  Mich.  430,  it  is  held  that  a  50.     People      v.      Pequin,     74 

note    given    to   a    county   trcas-  Mich.  35. 

urer  personally  for  money  actu-  51.     East  Saginaw  v.  Saginaw 

ally  loaned   by  him   to  pay  the  Co.  Treasurer,  44  Mich.  273. 

tax,  which  money  was  paid  into  52.     Chilvers     v.     People,     11 

the  county  treasury,  is  valid  as  Mich.  43,  50:  Gibbons  v.  Ogden, 

being  a  personal  loan.  9     Wheat     203;     New     York     v. 

48.  Springswells       Twp.       v.  Milan,    11    Pet.    133;     People    v. 
Wayne  Co.  Treasurer,  58  Mich.  Babcock.    11    Wend.    586;    Con- 
210.  way  v.  Taylor.  1  Black.  603. 

49.  See      Refunding      Taxes. 


CHAPTER  II. 
KIXDS  OF  TAXATION*. 

§27.  Institute  Fees. 

§28.  Tolls. 

§29.  Ad  Valorem  Tax. 

§30.  Specific  Taxes. 

§31.  Express  Companies. 

§32.  Railroad   Companies. 

§33.  Union  Depot  Companies. 

§34.  Railroad  Companies.  Exemption  from  Taxation. 

§35.  Street  Railway  Companies. 

§36.  Insurance  Companies. 

§37.  Telegraph  and  Telephone  Companies. 

§38.  Tax  upon  Privileges. 

§39.  Protective  Taxation. 

§40.  Inheritance  Tax. 

§41.  Internal   Revenue. 

CROSS-REFERENCES. 

Bonuses,  §§9,  10.    Drain  Tax,  §§282,    292.      Special    Assessments, 
§316. 

§27.     Institute  Fees. 

These  are  charges  for  taking  examinations,  or  making 
a  contract,  etc.,  or  receiving  employment.  They  must  be 
uniform  as  to  each  class  they  apply  to.  These  charges  are 
not  specific  taxes  and  therefore  do  not  violate  the  constitu- 
tion1. 

1.     Hammond        v.        School  sions   of  the  constitution.     See, 

Board,    109    Mich.    676,   sustains  also.  State  v.  French,  17  Mont, 

this  statute,  holding  that  it  does  54. 
not    violate    any    of    the    provi- 


§28  T*HE    LAW    OF    TAXATION  42 

Statutory  Provision. 

C.  L.  '97,  §4839,  provides:  "That  all  boards  or 
officers  authorized  by  law  to  examine  applicants  for 
certificates  of  qualification  as  teachers  shall  collect,  at 
the  time  of  examination,  from  each  male  applicant  for 
a  certificate,  an  annual  fee  of  one  dollar,  and  from  each 
female  applicant  for  a  certificate  an  annual  fee  of  fifty 
cents."  The  section  further  provides  that  the  director 
and  secretary  shall  not  employ  any  teacher  who  has  not 
paid  the  fee  without  collecting  it  at  the  time  of  making 
the  contract. 

§28.     Tolls. 

It  is  within  the  power  of  the  state  to  permit  the  taking  of 
tolls  upon  the  inland  streams  of  the  state,  as  well  as  to 
authorize  the  taking  of  tolls  upon  other  highways.  The 
taking  of  tolls  is  not  in  conflict  with  the  constitution;  nor, 
in  respect  to  streams,  is  it  contrary  to  the  Ordinance  of  1787 
which  declares  the  navigable  waters  of  the  Northwest  Ter- 
ritory forever  free. 

The  chief  object  of  the  Ordinance  of  1787  was  to  secure 
the  same  rights  to  non-residents  as  should  be  granted  to 
residents,  and  to  prevent  any  discriminating  burdens.  The 
Constitution  of  the  United  States  has  secured  this  equality 
of  rights  among  the  citizens  of  the  different  states,  and  the 
constitution  of  Michigan  has  secured  the  common  right  of 
passage  in  all  navigable  waters.  The  controversy,  there- 
fore, is  narrowed  down  to  the  inquiry  whether  the  state 
has  a  right  to  provide  for  improving  waters  that  need  im- 


}••;  KINDS  OF  TAXATION  §28 

provement,  and  for  allowing  tolls  to  be  charged  for  using 
the  improvements. 

The  idea  that  tolls  for  the  actual  use  of  passage  over  land 
or  water  highways  can  be  treated  as  taxes,  and  as  an  in- 
vasion of  private  property,  is  not  tenable.  They  are  not 
levied  on  property,  or  on  persons,  as  their  share  of  any 
public  burden  laid  on  the  people,  but  they  are  a  fixed  com- 
pensation in  lieu  of  a  quantum  valet  for  the  use  of  that 
which  has  value  and  which  is  actually  used  to  advantage. 
The  statute  referred  to  contemplates  that  in  all  probability, 
without  the  facilities  rendered  by  the  improvement,  much  of 
the  property  floated  would  not  get  down  the  stream  at  all. 
They  are  collected  on  the  same  principle  as  turnpike  tolls, 
or  railway  and  wharfage  charges,  which  no  one  has  ever 
supposed  were  public  charges  at  all.  Turnpikes  and  canals 
are  usually  open  to  the  use  of  everybody,  on  uniform  terms, 
but  they  are  seldom  open  to  use  without  tolls.  In  the  grants 
made  to  this  state  of  lands  to  build  canals  and  improve 
streams,  tolls  have  been  expressly  provided  for  and  author- 
ized. 

In  both  statutes  referred  to,  the  waters  improved  by  the 
St.  Mary's  river  canal  and  Portage  canal,  were  within  the 
same  Ordinance  of  1787,  and  were  parts  of  our  great  public 
waters,  and  not  log  ways.  But  congress  recognized  the 
propriety  of  having  the  cost  and  current  expenses  of  such 
improvements  paid  out  of  tolls.  Under  the  constitution  of 
this  state  there  is  no  way  of  providing  for  such  cases  with- 
out the  intervention  of  corporations  and  tolls  because  the 
state  is  forbidden  to  make  any  public  works  at  its  own  ex- 
pense by  the  express  terms  of  the  constitution*. 

2.    Const,  of  1850,  Art.  XIV,  J9      Beecher's  Const,  of  1908,  Art.  X. 


§29  THE    LAW    OF    TAXATION  44 

§29.     Ad  Valorem  Tax. 

In  general,  a  tax  based  upon  the  assessed  cash  value  of 
the  property  is  not  a  specific  tax.  It  is  an  ad  valorem  tax, 
and  any  enactment  of  the  legislature  does  not  make  it  a 
specific  tax.  Otherwise,  the  legislature  could  determine 
what  was  meant  by  the  use  of  terms  in  the  constitution 
which  have  a  well  defined  meaning.  Nevertheless,  the  fact 
that  in  imposing  a  specific  tax,  the  value  of  the  thing  taxed 
is  taken  into  account  in  determining  the  amount  of  it,  does 
not  change  the  nature  of  the  tax3. 

A  large  proportion  of  the  duties  on  imports  are  of  this 
description,  and  so  sometimes,  are  many  of  the  taxes  which 
make  up  internal  revenue.  The  statute  laying  them  pre- 
scribes the  rule,  but  requires  the  action  of  appraisers  in 
apportioning  them  between  individuals.  By  far  the  larger 
proportion  of  all  state  taxation  is  also  upon  property  by  a 
valuation,  and  effect  can  only  be  given  to  it  by  means  of 
assessors,  who  value  the  property,  and  apportion  the  tax  by 
their  estimate. 

On  the  other  hand,  a  specific  tax  is  that  which  imposes  a 
specific  sum  by  the  head  or  number,  or  by  some  standard 
of  weight  or  measurement,  and  which  requires  no  assess- 
ment beyond  a  listing  or  classification  of  the  subjects  to  be 
taxed4. 

§14.    Manistee  River  Imp.  Co.  v.  XIV,    §14,    Beecher's    Constitu- 

Sands,  53  Mich.  593,  595;  Attor-  tion  of  1908,  Art.  X,  §3. 

ney    General    v.    Lake    Superior  Union    Trust    Co.    v.    Probate 

Ship    Canal    Co.,   32    Mich.    233;  Judge,  125  Mich.  487,  490;  Com. 

Benjamin     v.     Manistee     River  v.  Hamilton  Mfg.  Co.,  12  Allen . 

Imp.   Co.,  42  Mich.  628;   Manis-  302. 

tee  River  Imp.  Co.  v.  Lamport,  4.     In      Pingree     v.      Auditor 

49  Mich.  442.  General,  120  Mich.  95,  it  is  held 

3.     Constitution   of   1850,   Art.  that  Act  168  of  Public  Acts  of 


45  KINDS  OF  TAXATION  §§30,  31 

§30.     Specific  Taxes. 

The  constitution  provides  that  the  state  may  impose  spe- 
cific taxes,  which  shall  be  uniform.  The  legislature  may 
provide  for  the  collection  of  specific  taxes  from  banking, 
railroad,  plank  road,  and  other  corporations,  on  a  basis 
of  the  cash  value  of  the  property. 

The  taxing  power  of  a  state  is  one  of  its  attributes  of 
sovereignty.  Where  there  has  been  no  compact  with  the 
federal  government,  or  cession  of  jurisdiction,  for  the  pur- 
poses specified  in  the  constitution,  this  power  reaches  all  of 
ihe  property  and  business  within  the  state  which  are  not 
properly  denominated  the  means  of  the  general  government, 
and  it  may  be  exercised  at  the  discretion  of  the  state.  What- 
ever exists  within  its  territorial  limits  in  form  of  property, 
real  or  personal,  with  the  exceptions  stated,  is  subject  to  its 
laws;  and  also  the  numberless  enterprises  in  which  its  citi- 
zens may  be  engaged5.  Act  178  of  Public  Acts  of  1901,  does 
not  authorize  a  bridge  company,  which  does  not  own,  lease, 
or  operate,  a  railroad,  to  pay  specific  taxes*. 

§31.     Specific  Taxes  for  Express  Companies. 

An  express  company  may  be  required  to  pay  a  specific 
tax  upon  its  gross  amount  of  current  business  within  the 
state.  Such  a  provision  is  not  repugnant  to  the  federal 


1881,   providing  for   the   assess-  5.     Constitution   of   1850,  Art. 

ment     of     telegraph     and     tele-  IV,   §10.   Beecher's   Constitution 

phone  lines  at  their  cash  value,  of  1908,  Art.  X,  884,  5. 

at  the  average  rate  of  taxation  Walcott   v.    People,    17   Mich. 

in  the  state  for  the  year  prior,  68,  87;  Nathan  v.  State,  8  How. 

is  an  ad  valorem  tax  and  a  tax  373. 

on      property,      and      therefore  6.     North  Park  Bridge  Co.  v. 

should  be  paid  into  the  general  Walker  Twp.,  143   Mich.   693. 

fund  of  the  state. 


§32 


THE    LAW    OF    TAXATION 


constitution  which  gives  congress  power  to  regulate  inter- 
state commerce7.  Act  No.  19  of  Public  Acts  of  1909  pro- 
vides for  the  assessment  of  express  companies,  by  the 
state  board  of  assessors,  in  the  same  manner  as  railroad 
companies. 


§32.     Specific  Taxes  for  Railroad  Companies. 

These  companies  have  generally  been  required  to  pay  a 
specific  tax ;  either  upon  their  gross  earnings,  or  upon  some 
ascertained  valuation,  and  upon  a  rate  per  cent  to  be  ascer- 
tained. In  Michigan,  all  specific  taxes  are  placed  to  the 
credit  of  the  primary  school  fund8.  The  municipality  may, 


7.  Walcott      v.      People,      17 
Mich.   68. 

8.  In    People  v.    Detroit   etc. 
Ry.,  1  Mich.  458,  it  is  held  that 
a    railroad    company    incorpor- 
ated   before    revision    of    C.    L. 
1846,  whose  charter  is  silent  as 
to   taxation,   is   liable   to   pay  a 
specific   tax.     In   Detroit  Street 
Ry.    v.    Guthard,    51    Mich.    180, 
it  is  held  that  the  Tram  railway 
act  (C.  L.  Chap.  167),  does  not 
bar  the  legislature  from  chang- 
ing   the    mode    of    taxation    or 
the  ^amount    of    the    taxes.      In 
People   v.   Mich.   Southern   Ry., 
4  Mich.  398,  it  is  held  that  pur- 
chase    money,     loans  for     con- 
struction, and  capital  stock,  are 
subject    to     specific   taxes.       In 
State      Treasurer     v.      Auditor 
General,  46  Mich.  224,  it  is  held 
that  where  only  a  portion  of  a 
railroad  is  within  the  state,  only 
the  portion  within  the  state,  or 
stock  representing  that  portion, 
can  be  taxed.     A  tax  upon   the 
entire  gross  earnings  of  such  a 
road     is     illegal.       There     is     a 
similar  holding  in   Chicago  etc. 
Ry.     v.     Auditor     General,     53 
Mich.  79.     In  Fargo  v.  Auditor 


General,  57  Mich.  598.  it  is  held 
that  Act  152  of  Public  Acts  of 
1883,  requiring  taxes  on  gross 
receipts  of  corporations  and 
persons  other  than  railroad 
companies,  running  cars  over 
lines  in  this  state,  is  valid.  In 
M.  &  G.  Ry.  v.  Auditor  Gen- 
eral, 115  Mich.  291,  it  is  held 
that  the  exemption  of  railroad 
companies  from  taxation  under 
Act  174  of  Public  Acts  of  1891, 
for  ten  years  after  their  con- 
struction, does  not  apply  to 
companies  then  organized  and 
having  part  of  their  line  built. 
Exemption  laws  are  construed 
strictly.  It  is  also  held  that  the 
exemption  of  Union  Depot 
Companies  under  this  act  was 
repealed  by  Act  228  of  Public 
Acts  of  1897. 

In  Com'r  v.  Wabash  R.  Co., 
123  Mich.  609,  it  is  held  that  Act 
90  of  Public  Acts  of  1891,  is 
constitutional  and  relates  to 
domestic  commerce  only;  that 
receipts  from  mail  and  express 
business  are  to  be  included  in 
the  gross  earnings  of  the  pas- 
senger business. 


47 


KINDS  OF  TAXATION 


and  generally  does,  make  the  specific  tax  in  lieu  of  all  other 
taxes,  excepting  taxes  for  improvements.  Elevators  in  con- 
nection with  the  railroads,  terminals  and  depot  property,  are 
not  subject  to  ordinary  taxes9. 

When  the  statute  requires  the  corporation  to  be  taxed  a 
certain  rate  upon  its  capital  and  loans  employed  in  the  state, 
and  the  auditor  general  computes  that  amount  upon  the 
statements  furnished  him  by  the  company  without  his  at- 
tempting to  determine  their  correctness,  the  state  is  not 
precluded  from  thereafter  enforcing  payment  of  the  correct 
amount.  The  company  should  be  taxed  upon  the  sum  its 
bonds  sold  for,  not  upon  the  face  of  the  bonds.  Stock  divi- 
dends stand  on  the  same  footing  as  the  original  stock,  and 


9.  In  Detroit  v.  Detroit  Ry., 
76  Mich.  421,  the  tax  of  1%  on 
gross  receipts  is  held  to  be  in 
lieu  of  all  city  taxes.  In  Union 
Depot  Co.  v.  Detroit,  88  Mich. 
347,  it  is  held  that  a  grain  ele- 
vator in  connection  with  a  de- 
pot is  not  subject  to  ordinary 
taxes.  In  Flint  etc.  Ry.  v. 
Auditor  General,  114  Mich.  682, 
it  is  held  that  terminals  and 
depot  grounds  could  not  be 
taxed  under  the  general  tax 
law.  In  L.  S.  &  M.  S.  Ry.  v. 
Grand  Rapids,  102  Mich.  374,  it 
is  held  that  while  the  terminal 
property  of  a  railroad  company 
cannot  be  sold  for  taxes  for  an 
improvement,  yet  the  company 
will  be  liable  for  such  an 
assessment.  In  Auditor  Gen- 
eral y.  Flint  etc.  Ry.,  119  Mich. 
682,  it  is  held  that  a  track,  a 
dock,  and  land  necessary  to 
build  the  same,  are  not  subject 
to  local  taxation.  In  Auditor 
General  v.  Flint  etc.,  Ry.,  114 
Mich.  f>82.  it  is  held  that  under 
511  of  Act  206  of  Public  Acts 
of  1893  (C.  L.  §3834).  land  used 
in  shipping  freight  is  not  liable 
to  local  taxation;  nor  will  it  be 


because  the  company  permits 
shippers  to  pile  lumber  there- 
on, without  charge,  for  conven- 
ience in  shipping.  In  Pere 
Marquette  R.  Co.  v.  Ludington, 
133  Mich.  397,  it  is  held  that  a 
stock  of  groceries  kept  to  sup- 
ply the  company's  steamers 
plying  between  Ludington  and 
Chicago  were  not  subject  to 
local  taxation,  the  specific  tax 
covering  such  property  (C.  L. 
§6277).  The  company  was 
authorized  to  own  and  operate 
the  boats.  In  Illinois  R.  Co.  v. 
Irwin,  71  111.  452,  it  was  held 
that  a  statute  exempting  all  of 
the  property  of  a  railroad  com- 
pany from  taxation  did  not 
exempt  a  ferry  boat  owned  by 
such  company  from  local  taxa- 
tion, because  the  company  was 
not  authorized  to  own  such 
boat.  In  Detroit  etc.  Ry.  v. 
Com'r.,  119  Mich.  132,  it  is 
held  that  rentals,  switching 
charges  and  interest  should  be 
included,  and  tracks  owned, 
but  leased  exclusively  to  other 
lines,  should  not  DC  included  in 
the  mileage. 


§32  THE    LAW    OF    TAXATION  48 

should  be  taxed  as  paid  in.  Where  the  state  has  neglected 
to  demand  its  tax  from  the  company,  and  has  in  reality 
never  levied  the  tax  claimed,  the  company  cannot  be  con- 
sidered to  be  in  default  so  as  to  charge  it  with  interest  upon 
past  claims  found  to  be  due  the  state10.  When,  however,  a 
company  makes  false  returns  to  the  state  officers  of  its 
business  and  earnings,  upon  which  its  tax  was  computed, 
the  state  may  recover  the  balance  due  in  an  action  in  equity. 
The  charter  of  the  company  making  any  unpaid  tax  a  lien 
upon  the  property  of  the  company,  is  in  the  nature  of  a 
contract,  and  the  lien  therefor  is  similar  to  the  lien  for  a 
mortgage,  which  would  not  be  defeated  by  less  than  the 
lapse  of  fifteen  years'  time11. 

Act  173  of  Public  Acts  of  1901,  providing  that  railroad 
property  shall  be  assessed  at  the  average  rate  of  taxation 
for  the  then  current  year  levied  upon  other  property  for 
which  ad  valorem  taxes  are  assessed,  is  valid;  and  under 
this  act,  the  state  board  of  assessors  havre  no  authority  to 
add  to  this  value  of  the  state,  at  large,  upon  the  theory  that 
the  assessments  in  the  state  are  too  low12. 

Art.  15,  §11,  of  the  Constitution  of  1850,  provided  that 
the  rate  of  taxation  shall  be  the  average  rate  levied  in  the 
state.  Act  iNo.  282  of  the  Public  Acts  of  1905,  in  so  far 
as  it  attempts  to  permit  the  state  board  of  assessors  to 
determine  this  rate  from  any  source  excepting  from  actual 
assessment  made  in  the  state,  is  unconstitutional.  This  loard 
cannot  determine  what  the  rate  should  be,  but  only  what  it 
is.  They  cannot  take  into  account  property  omitted  from 


10.  L.    S.     &   M.    S.   Ry.    v.  14. 

State,  46  Mich.  193.  12.  Board     of     Education     v. 

11.  Attorney        General       v.  State  Board    of   Assessors,    133: 
Mich.  Central  R.  Co.,  145  Mich.  Mich.  116. 


I  '••  KINDS  OF  TAXATION 

the  various  rolls,  nor  what  they  may  deem  low  valuation13. 
The  appeal  to  the  circuit  court  from  the  determination  of 
the  amount  of  taxes  the  Pullman  Sleeping  Car  Companies 
should  pay,  is  not  judicial  in  its  nature;  and  a  writ  of  error 
will  not  lie  from  the  circuit  court  to  the  supreme  court  to 
review  its  decision14.  A  bridge  company,  which  does  not 
operate  or  lease  a  railroad,  is  not  subject  to  a  specific  tax18. 
It  is  competent,  however,  for  the  legislature  to  give  a  cor- 
poration an  option  to  pay  taxes  upon  an  ad  valorem  basis, 
or  a  specific  tax16.  Where  a  general  railroad  company  buys 
and  operates  the  property  of  a  train  railway,  such  property 
is  not  taxable  locally,  but  by  the  state17.  Act  No.  19  of 
Public  Acts  of  1909  provides  for  the  assessment  of  these 
companies  by  the  state  board  of  assessors  the  tax  paid  to 
be  the  average  rate  of  general  taxation  in  the  state,  upon  a 
valuation  of  the  railroad  property  fixed  by  this  board. 

£33.     Specific  Tax  for  Union  Depot  Companies. 

These  companies  are  railroad  corporations,  and  generally 
are  provided  for  by  laws  relating  specifically  to  this  class 
of  railroads.  A  graded  specific  tax,  according  to  the 
amount  of  business  transacted  per  mile  of  track  is  general. 
Sums  received  for  switching,  for  rental  of  its  tracks,  and 
interest,  should  be  included  in  the  gross  receipts.18 

In  computing  mileage  under  such  a  statute,  there  should 
be  a  measurement  of  a  line  for  each  railroad,  if  it  has  as 

13.  Attorney       General        v.      v.  Walker  Twp.,  143  Mich.  693. 
State    Board    of    Assessors,    143      construing    Act    173    of    Public 
Mich.   73:     See   Beecher's   Con-      Acts. 

-titution.   Art.   X.,   §84,  5.  16.     Attorney        General        v. 

14.  Auditor    General    v.    Pul-      Arnott.   145   Mich.  416. 

man  Car  Co.,  34  Mich.  59,  con-  17.     Detroit  v.  Detroit  Mfg'rs 

struing  Public   Acts  of   1872,  p.  R.  R.  Co.,  149  Mich.  530. 

89.  18.    Chicago,  etc.  Ry.  v  Com'r, 

15.  North    Park    Bridge    Co.  119  Mich.  135. 


§34  THE    LAW    OF    TAXATION  50 

many  tracks  as  there  are  railroads,  no  two  of  which  are  used 
exclusively  by  any  one  road19. 

§34.     Railroad  Companies,  Exemption  from  Taxation. 

It  is  within  the  power  of  the  legislature  to  exempt  prop- 
erty from  taxation.  These  exemptions  are  strictly  construed 
because  such  exemptions  are  in  derogation  of  the  sovereign 
authority  and  of  common  right,  and  therefore,  not  to  be 
extended  beyond  the  exact  and  express  requirement  con- 
strued strictissimi  juris.  The  exemption  from  taxation 
must  be  construed  to  have  been  the  personal  privilege  of  the 
very  corporation  specifically  referred  to,  and  to  have  per- 
ished with  that  unless  the  express  and  clear  intention  of  the 
law  requires  the  exemption  to  pass  as  a  continuing  fran- 
chise to  a  successor.  If  the  exemption  is  to  a  railroad  com- 
pany, it  does  not  apply  to  lines  built  after  the  exemption 
was  granted;  neither  does  it  apply  to  the  successor  of  that 
railroad  company20. 

A  statute  may  exempt  railroads  within  a  certain  territory 
from  taxation  for  a  shorter  or  longer  period;  but  such  a 
statute  is  a  mere  gratuity  and  may  be  repealed  at  the  pleasure 
of  the  legislature.  The  essential  element  of  a  binding  con- 
tract, viz.,  a  consideration,  is  wanting.  Until  it  is  repealed, 
it  is  binding21. 

The  power  of  taxation  is  one  of  the  essential  powers  of 
sovereignty,  which  the  state  must  exercise  again  and  again, 

19.  Union      Depot      Co.      v.  Railway   Co.   v.   Com'rs,   112  U. 
Com'r,   118   Mich.   340,   constru-  S.    609.      In    Manistee    etc.    Ry. 
inj?   Act   228   of    Public  Acts   of  v.    Com'r,    115    Mich.    291,    it    is 
1897.      In     Detroit    etc.    Ry.   v.  held     that     the     exemption     of 
Com'r,  119  Mich.  132,  it  is  held  Union   Depot   companies,  under 
that  tracks  not  exclusively  con-  Act  174  of  Public  Acts  of  1891, 
trolled  by  the  company  are  not  was    repealed    by    Act    228   of 
to   be   computed  as   part  of  its  Public  Acts  of  1897. 
mileage.  21.     Manistee    etc.    R.    Co.    v. 

20.  L.     S.     &   M.    S.     Ry.    v.  Com'r,  118  Mich.  349. 
Grand    Rapids,    102    Mich.    374; 


51  KINDS  OF  TAXATION  ?-'Jl 

as  often  as  its  needs  or  its  interests  may  require;  and  one 
that  cannot  be  crippled  in  the  least  or  abridged,  without  to 
that  extent  crippling  the  state,  impairing  its  vitality,  and  in 
some  degree  endangering  its  existence.  It  is  upon  this 
ground  that  it  has  been  so  often  and  so  earnestly  denied  by 
learned  and  able  jurists,  that  it  is  within  the  grant  of 
authority  to  any  legislative  body,  chosen  as  representatives 
of  the  people,  to  enter  into  any  contract,  by  which  they 
bargain  away  any  portion  of  the  power  to  levy  taxes  for 
the  need  of  the  government.  For  the  representatives  of 
the  people  do  not  receive  the  powers  of  government  for  any 
purpose  of  sale  or  grant,  but  they  take  them  in  trust  for  a 
brief  period,  to  be  employed  for  the  general  welfare,  within 
such  limits  as  the  people  may  have  prescribed,  and  under 
obligations  to  transmit  them  unimpaired  to  their  successors. 

A  repeal  of  a  bounty  law  absolves  the  state  from  all  obli- 
gation to  pay  the  bounty  upon  anything  that  shall  be 
manufactured  afterwards.  The  fact  that  large  investments 
will  thereby  be  rendered  unproductive  cannot  be  considered. 

The  bounty  that  is  to  be  given  by  way  of  exemption  does 
not  rest  upon  any  different  basis.  The  state  promises 
not  to  tax ;  but  this  means  only  that  it  will  not  tax  so  long 
as  me  promise  is  a  continuing  one,,  and  the  condition  on 
which  it  is  made  is  performed.  Those  who  pursue  the 
manufacture  until  the  promise  is  recalled,  have  earned  the 
exemption  to  that  time,  but  they  have  earned  nothing  more. 
For  protection  against  loss  from  its  recall,  they  must  appeal 
to  the  generosity  of  the  legislature,  and  its  sense  of  right 
and  justice. 

The  people  of  the  state  are  being  pressed  with  arguments 
to  demonstrate  the  necessity  of  railroad  improvements,  and 
the  great  and  urgent  importance  of  individuals  and  com- 
munities lending  them  their  aid.  There  are  not  wanting 


§35  THE    LAW    OF    TAXATION  52 

plausible  arguments  in  favor  of  exempting  all  such  improve- 
ments from  state  and  local  taxation,  in  consideration  of 
the  benefits  they  confer  upon  the  state,  in  extending  settle- 
ment, enhancing  the  value  of  lands,  and  increasing  the 
facilities  for  commerce  and  travel.  So  great  a  boon  as  a 
perpetual  exemption  from  taxation  is  one  for  which  this 
interest  might  afford  to  labor  earnestly  and  persistently,  and 
if  the  incidents  of  an  irrepealable  contract  can  be  discov- 
ered in  such  a  law,  he  would  be  no  vain  alarmist  who  should 
confidently  predict  the  speedy  coming  of  the  time  when  mil- 
lions of  property  of  this  description  would  be  found  to  be 
forever  exempt  from  taxation,  under  improvident  and  hasty 
legislation,  passed  under  the  specious  pretense  of  encourag- 
ing struggling  enterprise22. 

§35.     Street  Railway  Companies. 

These  franchises,  for  purposes  of  assessment,  are  treated, 
as  part  of  the  roadbed  and  other  tangible  property.  The 
franchise  and  roadbed  are  assessed  together,  without  separ- 
ation, in  the  several  assessing  districts ;  the  rolling  stock 
and  personal  property  are  assessed  at  the  main  office. 
Under  our  present  system,  these  railways  do  not  pay  a 
specific  tax23. 

The  original  act  for  the  incorporation  of  tram  railways 
provided  for  a  specific  tax  upon  the  amount  of  their  capital 
stock  paid  in.  This  remained  in  force  until  1882,  when  they 
were  placed  upon  the  same  footing  as  a  natural  person,  and 


22.     East    Saginaw    Mfg.    Co.  Sup'rs,  93  U.  S.  595. 

v.    East   Saginaw,   19   Mich.  259,  23.     Detroit    Citizens    Ry.    v. 

276:    Welch    v.    Cook,    97    U.    S.  Detroit,  125   Mich.   673.     In   De- 

541:     Tucker     v.   Ferguson,     22  troit      v.      Circuit      Judge,      127 

Wall.    527:    Grand    Lodge    F.    &  Mich.    604,    it    is    held    that    the 

A.    M.   v.   New   Orleans,   166   U.  rolling    stock    cannot    be    taken 

S.    143:    West    Wis.    R.    Co.    v.  on  a  levy. 


53  KINDS  OF  TAXATION 

made  taxable  upon  an  assessed  valuation  of  their  property-1. 
The  Ordinance  of  1887,  fixing  upon  one  per  cent  of  the 
gross  earnings,  in  lieu  of  all  city  taxes,  bars  all  other  city 
taxes.  The  city  could  not  collect  the  regular  taxes  and  the 
one  per  cent  too.  The  tracks  of  a  street  railway  are  insep- 
arable from  its  franchise,  and  not  being  taxable  as  land,  it 
should  properly  be  taxed  as  an  entirety  to  the  corporation,  in 
one  place,  so  far  as  within  one  city25.  Under  the  franchise 
granted  to  the  Detroit  City  Railway,  it  was  to  pay  a  per- 
centage of  its  gross  earnings,  and  also  taxes  upon  its  lots 
and  parcels  of  land.  It  afterwards  erected  an  expensive 
power  house  building  to  generate  electricity,  this  taking  the 
place  of  a  great  number  of  horses.  It  was  held  that  the 
local  assessors  were  justified  in  placing  this  property  upon 
the  tax  rolls,  though  some  of  the  machinery  might  be  re- 
moved26. 

§36.     Insurance  Companies. 

The  law  relative  to  these  companies  are  very  similiar  to 
the  banking  laws  as  to  the  principles  of  assessment.  The 
value  of  the  real  property  upon  which  it  pays  taxes,  and  its 
liabilities,  are  deducted  from  its  assets,  and  it  is  taxed  upon 
such  balance.  While  mortgages  were  assessed  as  real  estate, 
they  were  also  to  be  deducted  from  the  assets,  any  provision 
to  the  contrary  being  unconstitutional27.  The  advance 

24.  Detroit     Street      Ry.     v  gages     shall     not    be     deducted 
Guthard,  51  Mich.  180.  from  the  assets,  is  held  uncon- 

25.  Detroit    v.    Detroit    City  stitutional,  as  violating  the  rule 
Ry..  76  Mich.  421,  428.  of  uniformity.     It   would   seem, 

26.  Detroit     United     Ry.     v.  however,    that     such     provision 
State    Tax    Com'rs,    136    Mich.  would  be  valid  if  the  mortgages 
96.  were  otherwise  assessed.  Under 

27.  Standard     Life     lus.    Co.  the     law     of     1891,     mortgages 
v.  Assessors,  95   Mich.  466.    §52  should    be    deducted    from    the 
and  4  of  Act  2fi  of  Public  Acts  assets  of  the  company  in  deter- 
of    1893,    providing    that    mort-  mining      the      amount      to      be 


§§37,    38  THE    LAW    OF    TAXATION  54 

premiums  paid  to  the  company  are  properly  included  in  its 
assets ;  and  the  action  of  the  insurance  commissioner  in  de- 
termining the  amount  of  personal  property  is  final28. 

§37.    Telegraph  and  Telephone  Companies. 

Under  the  statutes  of  1851,  a  specific  tax  was  imposed 
upon  these  companies.  Act  No.  77  of  Public  Acts  of  1879 
and  Act  No.  168  of  Public  Acts  of  1881  attempted  to  re- 
peal the  first  act.  These  latter  acts  being  unconstitutional, 
were  of  no  effect,  and  left  the  first  act  in  force20.  Act  No. 
19  of  Public  Acts  of  1909,  provides  for  assessing  these 
companies  similar  to  railroad  companies. 

§38.     Tax  Upon  Privileges. 

The  power  of  the  state  to  tax  civil  rights  as  privileges 
is  undoubted.  It  extends  so  far  as  to  cover  occupations  and 

assessed.     Council  v.  Assessors,  Board    of    Equalization,    74    la. 

91   Mich.   78;   Latham  v.   Board  176;  Hawkeye  Ins.  Co.  v.  Board 

of  Assessors,  95  Mich.  509;  De-  of  Equalization,  75  la.  770. 
troit     River    Savings     Bank    v.          29.     Detroit      &     Western 

Board    of    Assessors,    95    Mich.  Union  Tel.    Co.,   130   Mich.   479. 

514;      Robinson     v.     Board     of  Prior  to  holding  these  acts  bad, 

Assessors,  95  Mich.  516;  Stand-  the  court,  in  Pingree  v.  Auditor 

ard    Life   etc.    Co.   v.    Board   of  General,  120  Mich.  95,  held  that 

Assessors,  95  Mich.  517.  a    tax    assessed    under    the    law 

28.     Mich.    Mutual    Life    Ins.  of    1881    was  an  ad  valorem   tax 

Co.  v.  Hartz,  129  Mich.  104;  De-  upon  property,  and  that  the  tax 

troit  Fire  Ins.  Co.  v.  Hartz,  132  collected  from  these  companies 

Mich.     518.       In     Mich.    Mutual  under   that   act    should    be    paid 

Life  Ins.  Co.  v.  Detroit  Council,  into    the    general    fund    of    the 

133    Mich.    408,    it   is    held   that  state.     In   Attorney   General   v. 

the   reserve   of  a  life  insurance  Common     Council,     113     Mich, 

company,    required    to    be    kept  388,  it  is  held  that  the   Detroit 

for  the  benefit  of  policy  holders  Telephone   Company,   organized 

is   to  be  treated  as  a  debt   due  under  3  H.  S.   §3718h,  C.  L.  '97, 

or   to    become    due,   within    the  §6695,    is    not    subject    to    local 

meaning    of  the    statute.      The  taxation,     but     that     telephone 

last  above  case  is  distinguished.  companies  are  taxed  under  Act 

This    rule    is    followed    in    Life  168  of  Public  Acts  of  1881,  and 

Ins.    Co.   v.    Lott,    54   Ala.    499;  pay  their  tax  to  the  state  treas- 

Equitable     Life     Ins.      Co.     v.  urer. 


.">:>  KINDS  OF  TAXATION 

sales.  Every  laborer  or  farmer,  merchant,  mechanic  or 
professional  man,  may  be  taxed  for  the  privilege  of  pur- 
suing his  calling30. 

The  legislature  may  raise  revenues  by  capitation  taxes, 
by  special  taxes  upon  carriages,  horses,  servants,  dogs,  fran- 
chises, and  upon  every  species  of  property  and  upon  all 
kinds  of  business  and  trades.  These  are  not  taxes  upon 
property,  and  have  not  usually  been  called  such.  They  are 
held  to  be  taxes  upon  privileges  or  civil  rights  and  exer- 
cised by  sanction  of  law81.  Act  29  of  Public  Acts  of  1887, 
providing  for  the  creation  of  water  power  companies  having 
the  privilege  of  paying  specific  taxes,  is  valid.  This  act 
provides  for  the  use  of  waters  from  Lake  Superior  or  the 
Saint  Mary's  river,  and  does  not  authorize  the  diversion 
of  other  water.  The  act  cannot  be  called  class  legislation, 
because  so  confined  in  its  application.  The  giving  of  the 
company  an  option  to  pay  either  an  ad  valorem,  or  a  specific 
tax,  is  not  the  delegating  of  legislative  power,  but  the  im- 
position of  a  condition  upon  the  company.  The  legislature 
may  make  such  regulations  and  conditions  as  it  pleases  with 
regard  to  the  taking  effect  of  laws.  They  may  be  absolute, 
conditional,  or  contingent;  and  if  the  latter,  they  may  take 
effect  on  the  happening  of  any  event  which  is  future  and 
uncertain32. 

§39.     Protective  Taxation. 

A  protective  tax,  under  the  guise  of  a  specific  tax,  cannot 
be  imposed  where  its  manifest  intent  is  to  encourage  local 

30.  Union  Trust  Co.  v.  Pro-  Y.     183;     People     v.     Equitable 
bate  Judge,  125  Mich.  487,  491;  Trust   Co.,  96  N.  Y.  387;  Port- 
Webber   v.   Virginia,   103   U.   S.  land  Bank  v.  Apthorp,  12  Mass. 
344;   Shepperd  v.  Sumpter   Co.,  252.     In   re   McPherson,   104    N. 
69  Ga.  535.  Y.  306. 

31.  People  v.  Brooklyn,  4  N.  32.     Beadle     v.      Arnot,      145 
Y.  419;  Stuart  v.  Palmer,  74  N.  Mich.   416. 


$40  THE    LAW    OF    TAXATION  5G 

industries.  It  then  becomes  a  tax  upon  interstate  commerce. 
Thus,  a  statute  which  provided  a  specific  tax  upon  mining 
and  smelting  companies  of  one  and  one-half  cents  per  ton 
upon  all  ore  shipped  out  of  the  state,  but  no  tax  upon  ore 
smelted  within  the  state,  was  held  void33. 

§40.     Inheritance  Tax. 

Among  the  civil  rights  sanctioned  by  law,  is  the  right  of 
succession  to  property;  and  the  weight  of  authority  holds 
that  such  a  tax  is  a  tax  upon  a  privilege,  and  not  a  mere  tax 
upon  property.  Such  taxes  are  not  usually  prohibited  by 
state  constitutions  requiring  uniformity  of  taxation,  because 
taxes  on  property  alone  are  referred  to  in  such  provisions34. 


33.  Public    Acts    of    1865,    p. 
44;     Jackson      Mining     Co.     v. 
Auditor    General,   32   Mich.   488. 

34.  In    Union    Trust    Co.    v. 
Probate    Judge,    125    Mich.    487, 
the    original    act    is    held    valid, 
excepting     the     provision     that 
the  costs   and   expenses   of   en- 
forcing the   act   should  be   paid 
out  of  the  tax  collected.     It  is 
held    that    the    entire    tax    must 
be  applied  to  the  school  funds. 
It  is  also  held  to  be  a  specific 
tax,     of     a     progressive     rate, 
arrived    at    upon    an  ad  -valorem 
basis.      Personal    notice    to    the 
legatee   is   not   required   by  the 
constitution     since    this    tax    is 
not  a  taking  of  the  property  of 
the   legatee,  but   is   imposing   a 
condition    upon    the    acquisition 
of    the    property.      The    duties 
imposed  upon  the  judge  of  pro- 
bate  are   legal.      In    re    Fox    Est. 
15  L.  N.  675,  Mich,   .  .,  the  court 
says :  "This  is  not  a  tax  on  money ; 
it  is  on  the  right  to  inherit,  and 
hence    a    condition     of    inherit- 
ance,    and     it  may     be     graded 
according   to   the   value   of  that 


inheritance.  The  condition  is 
not  arbitrary  because  it  is  de- 
termined by  that  value;  it  is 
not  unequal  in  operation  be- 
cause it  does  not  levy  the  same 
percentage  on  every  dollar — 
does  not  fail  to  treat  all  alike 
under  like  circumstances  and 
condition  both  in  privilege  con- 
ferred and  the  liabilities  im- 
posed." The  court  also  holds 
the  above  sections  1  and  2, 
making  a  progressive  rate  of 
taxation  for  varying  amounts 
inherited,  constitutional.  It 
also  held  that  a  mortgage  given 
to  secure  a  debt  should  be  de- 
ducted from  the  real  estate 
upon  which  it  is  given,  and  not 
from  the  personal  property  of 
the  estate.  In  Chambers  v. 
Judge  of  Probate,  100  Mich.  112 
Act  205  of  the  Public  Acts  of 
1893,  was  held  unconstitutional 
because  an  inheritance  tax  is  a 
specific  tax ;  and  that  act  re- 
quired the  tax  to  be  paid  into  the 
specific  fund  of  the  state  instead 
of  into  the  primary  school  fund. 
See  also,  Strode  v.  Com.  52  Pa. 


57  KINDS  OF  TAXATION  ji  1" 

The  legislature  intended  the  tax  to  be  measured  by  the 
property  which  it  is  within  the  power  of  the  state  to  tax. 
The  Michigan  statute  was  taken  from  New  York;  and  we 
follow  the  New  York  decisions  in  this  respect.  Moreover, 
a  policy  of  general  taxation  which  recognizes  the  policy  of 
the  rule  of  universal  succession  and  the  theory  of  the  taxa- 
tion of  personal  property  at  the  domicile  of  the  owner,  is 
not  logically  controlling  of  the  interpretation  of  a  statute 
imposing  a  tax  upon  a  right  of  succession  or  upon  a  trans- 
fer of  property  which  can  only  be  made  tangible  and  enforci- 
ble  in  the  jurisdiction  and  by  virtue  of  the  laws  and  insti- 
tutions of  the  situs  of  the  property. 

One  state  may  impose  an  inheritance  tax  upon  the  theory 
of  a  fiction  that  the  situs  of  the  personal  estate  is  the  domi- 
cile of  the  owner,  and  another  may  impose  it  because  the 
property  is  actually  within  the  state;  and  thus  the  same 
property  may  be  chargeable  twice  with  this  inheritance  tax. 
in  this  state  choses  in  action  and  stock  in  foreign  corpora- 
tions, although  in  the  hands  of  an  agent  here,  are  not  taxable 
here ;  but  land  contracts  and  mortgages  should  pay  the  tax 
here,  although  they  may  have  been  charged  with  this  tax  in 
another  state35.  But  the  State  has  no  interest  in  a  mortgage 
which  was  transferred  by  will  probated  before  the  inheri- 
tance law  took  effect86. 

St.,     181;     Scholey     v.     Rew,    23  Spencer,  61   N.  H.  624;   State  v. 

Wall.   331 ;    Mager   v    Grimox,   8  Switzler,  143  Mo.  287. 

How.  490;  U.   S.  v.  Perkins,  163  35.    In     re    Stanton    Est,     142 

U.    S.    639 ;    Knowlton   v.    Moore,  Mich.    491 ;     Auditor    General   v. 

178  U.  S.  41 ;  Magnee  v.  Savings  Merrian,    149    Mich.    305,   holding 

Bank,    170   U.    S.    288;    Lyson   v.  that    mortgages    and    notes    of    a 

State.  28  Ind.  587 ;  Eyre  v.  Jacob,  non-resident,        upon        Michigan 

14    Grat.    438;    State    v.    Alston,  property  were  subject  to  this  tax, 

94   Tenn.    674 ;    State   v.    Hamlin.  though   such   papers   were  not   in 

86     Me.     495.      There     are    state  the    state.      See    also    Blackstone 

holding  that  a   successive   tax   is  v.  Miller,  188  U.  S.  1R9. 

a  tax  upon  property.     See  Copes  36.    Miller     v.      Walker.      141 

Est,  191  Pa.  St.  1 ;  State  v.  Per-  Mich.  425 ;  Miller  v.  McLaughlin. 

ris,    53    Ohio    St.    314;    State    v.  141   Mich.  425. 
Gorman,  40  Minn.  232;  Curry  v. 


§40  THE    LAW    OF    TAXATION  58 

The  exemption,  (§2,  Act  188  of  Public  Acts  of  1899) 
refers  to  the  entire  estate,  and  not  to  each  distributive 
share37.  A  debt  secured  by  mortgage  on  lands  in  this  State 
is  subject  to  this  tax,  though  owned  by  a  non-resident,  and 
the  note  and  mortgage  are  not  in  the  State38.  A  legacy, 
to  a  church  before  payment,  is  taxable.  A  declaration 
of  the  inheritance  tax  by  the  Probate  Court,  is  not  res 
judicata  as  to  the  amount  assessible39 

Statutory  Provisions. 

Act  No.  148  of  Public  Acts  of  1909  provides  that 
no  heir,  legatee,  beneficiary,  trustee,  executor,  admin- 
istrator or  surety  shall  be  held  liable  for  any  inheri- 
tance tax  upon  the  transfer  of  property  in  any  estate 
in  which  the  property  has  been  distributed  by  order 
of  court  prior  to  Jan.  1st,  1905,  nor  when  the  admin- 
istrator, executor  or  trustee  has  been  discharged  by 
order  of  court  prior  to  Jan.  1st,  1905.  All  inheri- 
tance taxes  coming  under  the  above  terms  are  de- 
clared non-enforceable,  and  liens  upon  property  there- 
fore are  discharged. 

Act  188  of  the  Public  Acts  of  1901,  as  amended  by 
Act  195  of  the  Public  Acts  of  1903,  provides  an  in- 
heritance tax  upon  the  transfer  of  any  property  of  the 
value  of  $100.00  or  over,  in  trust  or  otherwise,  in  the 
following  cases :  (Sec.  1.) 

"First.  When  the  transfer  is  by  will  or  by  the  in- 
testate laws  of  this  state  from  any  person  dyink  seized 
or  possessed  of  the  property  while  a  resident  of  this 
state. 


37.  Stillwagen    v.    Durfee,    130      Mich.  630. 

Mich.  106.  39.    Port  Huron  v.  Wright,  150 

38.  In    re    Merrians    Est.    147      Mich.   279. 


59  KINDS    OF    TAXATION  §40 

"Second.  When  the  transfer  is  by  will  or  intestate 
law  of  property  within  the  state,  and  the  decedent  was 
a  non-resident  of  the  state  at  the  time  of  his  death. 

"Third.  When  the  transfer  is  of  property  made  by 
a  resident  or  by  a  non-resident,  when  such  non-resi- 
dent's property  is  within  this  state,  by  deed,  grant, 
bargain,  sale  or  gift  made  in  contemplation  of  the 
death  of  the  grantor,  vendor  or  donor  or  intended  to 
take  effect  in  possession  or  enjoyment  at  or  after  such 
death.  Such  tax  shall  also  be  imposed  when  any  such 
person  or  corporation  becomes  beneficially  entitled  in 
possession  or  expectancy  to  any  property  or  the  income 
thereof  by  any  such  transfer,  whether  made  before  or 
after  the  passage  of  this  act.  Such  tax  shall  be  at 
the  rate  of  five  per  cent  upon  the  clear  market  value 
of  such  property,  except  as  otherwise  prescribed  in 
the  next  section. 

§2.  "When  the  property  or  any  beneficial  interest 
therein  passes  by  any  such  transfer  to  or  for  the  use 
of  one  or  more  of  the  following  named  persons : 
Father,  mother,  husband,  wife,  child,  brother,  sister, 
wife  or  widow  of  a  son,  or  the  husband  of  a  daughter, 
or  to  or  for  the  use  of  any  child  or  children  adopted 
as  such  in  conformity  with  the  laws  of  this  state  of 
the  decedent,  grantor,  donor,  or  vendor,  or  to  or  for 
the  use  of  any  persons  to  whom  such  decedent,  gran- 
tor, donor  or  vendor,  for  not  less  than  ten  years  prior 
to  such  transfer  stood  in  the  mutually  acknowledged 
relation  of  a  parent,  or  to  or  for  the  use  of  any  lineal 
descendant  of  such  decedent,  grantor,  donor  or  ven- 
dor, such  transfer  of  property  shall  not  be  taxable 
under  this  act,  unless  it  is  personal  property  of  the 
clear  market  value  or  two  thousand  dollars  or  over. 


§41  THE    LAW    OF    TAXATION  60 

in  which  case  the  entire  transfer  shall  be  taxed  under 
this  act  at  the  rate  of  one  per  cent  upon  the  clear 
market  value  thereof.  The  exemptions  of  sections  one 
and  two  of  this  act  shall  apply  and  be  granted  to  each 
beneficiary's  interest  therein,  and  not  to  the  entire 
estate  of  a  decedent."  The  statute  further  makes  the 
tax  a  lien  upon  the  property  and  provides  for  its  col- 
lection. 

§41.     Internal  Revenue. 

Upon  the  principle  that  the  power  to  tax  involves  the 
power  to  destroy,  the  general  government  cannot  impose 
a  duty  or  tax  upon  the  proceedings  of  any  state  court. 
Otherwise,  the  general  government  could  destroy  all  of  the 
judicial  power  of  the  states  by  placing  an  excessive  or  an 
impossible  tax  upon  its  proceedings40. 


40.    Fifield   v.    Close,    15   Mich.      276;  Jones  v.  Keep,  19  Wis.  369. 
505;     Warren    v.    Paul,     22    Ind. 


CHAPTER  III. 
TOWNSHIP  ORGANIZATION. 


542.  Organization   of  Townships. 

§43.  Collateral  Attack  of  Municipal  Organization. 

§44.  De  Facto  Officers. 

§45.  De  Facto  Officers  and  Intruders. 

§46.  De  Facto  Tax  Officers. 

§47.  Deputy  Officers. 

§48.  The  Supervisor. 

§49.  The  Supervisor.     Suit  for  Taxes. 

§50.  Change  in  Roll  by  Supervisor. 

§42.     Organization  of  Townships. 

It  has  been  the  policy  of  the  state  to  leave  the  financial 
arrangements  on  division  of  municipalities  out  of  the  courts, 
and  to  leave  them  to  the  disposal  of  the  administrative 
authorities,  on  business  and  equitable  principles  resting 
largely  on  sound  discretion1.  Certain  designated  territory 
will  be  recognized  as  a  township  for  tax  purposes  until  after 
the  necessary  officers  have  been  elected.  The  old  township 
will  collect  the  taxes  levied  in  such  a  case2. 


1.    Midland    Twp.    v.    Roscom-  future. 

mon  Twp.  39  Mich.  424.  In  2.  Commins  Twp.  v.  Harris- 
Mich.  Land  &  Iron  Co.  v.  La  ville  Twp.  45  Mich.  442.  It  is 
Anse  Twp.  63  Mich.  700,  it  was  held  that  where  the  money  was 
held  unlawful  to  assess  a  high-  collected  by  the  old  township, 
way  tax  on  a  labor  basis,  in  a  mandamus  was  the  proper 
road  district  containing  no  remedy  by  which  the  new  town- 
overseer  of  highways,  such  tax  ?hip  could  acquire  its  share  of 
being  for  use  in  the  remote  the  taxes. 


$43  THE    LAW    OF    TAXATION  62 

§43.     Collateral  Attack  of  Muncipal  Corporations. 

The  corporate  organization  of  the  village  or  municipality 
cannot  be  questioned  in  a  suit  between  private  parties  in 
order  to  show  lack  of  authority  to  levy  a  tax,  where  the 
organization  has  been  in  existence  for  several  years3.  The 
same  rule  applies  to  de  facto  corporations.  There  are  prob- 
ably few  towns  or  school  districts  where  there  has  not 
been  some  looseness  in  proceedings  to  organize  them.  Such 
carelessness  seldom  leads  to  serious  mischief,  and  when  it 
does,  there  are  usually  sufficient  remedies  without  needless 
intermeddling.  The  convenience  and  security  of  the  vicin- 
age cannot  be  left  exposed  to  disturbance  by  every  one  who 
chooses  to  begin  a  law  suit4. 

The  court  will  justly  take  cognizance  of  the  notorious 
fact  that  municipal  action  is  often  exceedingly  informal  and 
irregular,  when,  after  all,  no  wrong  or  illegality  has  been 
intended,  and  the  real  purpose  of  the  law  has  been  had  in 
view  and  had  been  accomplished ;  so  that  it  may  be  said  the 
spirit  of  the  law  has  been  kept  while  the  letter  has  been  dis- 
regarded. We  may  also  find  in  the  statutes  many  instances 
of  careless  legislation  under  which  municipalities  have  acted 
for  many  years,  until  important  interests  have  sprung  up. 
which  might  be  crippled  or  destroyed  if  then  matters  of 
form  in  legislative  action  were  suffered  to  be  questioned.  If 
every  municipality  must  be  subject  to  be  called  into  court 
at  any  time  to  defend  its  original  organization  and  its  fran- 
chises, at  the  will  of  every  dissatisfied  citizen  who  may  feel 
disposed  to  question  them,  and  subject  to  dissolution  per- 
haps, or  to  be  crippled  in  authority  and  powers  if  defects 

3.     Coe  v.  Gregory,  53   Mic'i.  v.    Smith.   131  Mich.   70;    Carle- 

19;      People  v.      Maynard,     15  ton  v.  People,  10  Mich.  250. 

Mich.     463;  Stuart     v.     School          4.     Clement  v.     Everset,     29 

District,    30  Mich.    70;    People  Mich.  19,  23. 


63  TOWNSHIP    ORGANIZATION 


appear,  however  complete  may  have  been  the  recognition 
of  its  rights  and  privileges,  on  the  part  alike  of  the  state 
and  its  citizens,  it  may  very  justly  be  said  that  few  of  our 
municipalities  can  be  entirely  certain  of  the  ground  they 
stand  upon,  and  that  any  single  person,  however  honestly 
inclined,  may  have  it  in  his  power  in  many  cases  to  cause 
infinite  trouble,  embarrassment  and  mischief5. 

§44.     De  Facto  Officers. 

It  is  well  settled  that  the  acts  of  an  officer  de  facto,  so 
far  as  the  rights  of  third  persons  are  concerned,  are,  if 
done  within  the  scope  and  by  the  apparent  authority  of  the 
office,  as  valid  and  binding  as  if  he  were  the  officer  legally 
elected  and  qualified  for  the  office,  and  in  full  possession  of 
it;  and  such  acts  cannot  be  collaterally  attacked6. 

Nothing  but  the  actual  incumbency  can  make  a  person  a 
legal  officer,  however  much  he  may  be  entitled  to  obtain  the 
office.  The  only  valid  proceedings  in  the  name  of  an  office 
must  be  those  of  the  actual  incumbent;  and  his  acts  are 
valid  to  all  purposes  except,  possibly,  his  own  protection 
from  liability  as  a  wrongdoer7. 

The  public  have  an  interest  in  the  continuous  discharge 
of  official  duty,  and  whose  necessities  cannot  await  the  slow 
process  of  litigation  to  try  the  title,  have  a  right  to  treat 
as  valid  the  official  acts  of  the  incumbent,  with  whom  alone. 
under  the  circumstances,  they  can  transact  business.  This 
rule  is  obvious  and  necessary  for  the  protection  of  organized 
society;  for  the  affairs  of  society  cannot  be  carried  on  unless 

5.     Stuart   v.   School   District,  v.  Salomon,  54  111.  41. 

30  Mich.  69.  72;  Rumsey  v.  Pco-  6.     Auditor  General  v.  Meno- 

ple,    19    N.    Y.    41;    Lanning   v.  nvnee  Co.,  89  Mich.  552.  571. 

Carpenter,  20   N.   Y.  447;   State  7.     Board       of       Auditors      v. 

v.    Bunker,   59   Me.   366;   People  Benoit,  20  Mich.  176,  181. 


§•±4  THE    LAW    OF    TAXATION  64 

confidence  were  reposed  in  the  official  acts  of  persons  de 
facto  in  office. 

Private  individuals,  in  controversies  between  themselves, 
are  not  permitted  to  question  the  acts  o'f  an  officer  de  facto, 
for  the  further  reason  that  to  do  so  would  be  to  raise  and 
determine  the  title  to  his  office  in  controversy  in  a  suit  to 
which  he  was  not  a  party  and  in  which  he  could  not  be 
heard.  This  would  be  judging  a  man  unheard,  contrary 
to  natural  equity  and  the  policy  of  the  law. 

It  is  an  established  principle  of  law  that  the  acts  of  an 
officer,  having  color  of  title,  in  the  exercise  of  the  ordinary 
functions  of  his  office,  are  valid  in  respect  to  the  rights  of 
third  persons  who  may  be  interested  in  such  acts.  The  adop- 
tion of  such  a  rule  is  necessary  to  prevent  a  failure  of  jus- 
tice and  the  great  public  mischief  which  might  otherwise 
be  justly  apprehended8.  The  same  rule  applies  to  a  de  facto 
municipal  corporation  as  to  a  de  facto  officer9. 

One  whose  acts,  though  not  those  o'f  a  lawful  officer,  the 
law,  upon  principles  of  policy  and  justice,  will  hold  valid 
so  far  as  they  involve  the  interests  of  the  public  and  third 
persons,  where  the  duties  of  the  office  were  exercised : 

First.  Without  a  known  appointment  or  election,  but 
under  such  circumstances  of  reputation  or  acquiescence  as 
were  calculated  to  induce  people,  without  inquiry,  to  submit 
to  or  invoke  his  action,  supposing  him  to  be  the  officer  he 
assumed  to  be. 

Second.  Under  color  of  a  known  and  valid  appointment 
or  election,  but  when- the  officer  had  failed  to  conform  to 


8.     Auditor  General  v.  Meno-  Bebee,    9    Mass.    234;    Buckham 

minee    Co.,    89    Mich.    552,    572;  v.  Ruggles.  15  Mass.  182. 

Board     of     Auditors     v.     Benoit,  »  9.     Hardwick    v.     Bassett,    29> 

20     Mich.    176,    187;    Weeks   v.  Mich.  19,  23. 
Ellis,    2    Barb.    325;    Fowler    v. 


TOWNSHIP  ORGANIZATION  §  45 

some  precedent  requirement  or  condition,  as  to  take  an  oath, 
give  a  bond,  or  the  like. 

Third.  Under  color  of  a  known  election  or  appointment, 
void  because  the  officer  was  not  eligible,  or  because  there 
was  a  want  of  power  in  the  electing  or  appointing  body,  or 
by  reason  of  some  defect  or  irregularity  in  its  exercise,  such 
ineligibility,  want  of  power,  or  defect  being  unknown  to 
the  public. 

Fourth.  Under  color  of  an  election  or  appointment  by 
or  pursuant  to  a  public  unconstitutional  law,  before  the  same 
is  adjudged  to  be  such10. 

§45.     De  Facto  Officers  and  Intruders. 

A  mere  usurper  cannot  be  said  to  be  an  officer  dc  facto; 
yet  who  at  first  was  a  mere  usurper  may,  by  acquiescence, 
become  an  officer  de  facto.  Although  the  officer  dc  facto 
may  not  be  required  to  be  in  by  color  of  election  or  ap- 
pointment, yet  he  must,  to  distinguish  him  from  a  mere  in- 
truder or  usurper,  be  in  by  some  color  of  right ;  and  in 
harmony  with  the  rule  last  quoted,  it  has  been  said  that  the 
color  of  right  which  constitutes  one  an  officer  de  facto  may 
consist  in  an  election  or  appointment,  or  in  any  holding 
over  after  the  expiration  of  ones  term,  or  acquiescence  by 
the  public  in  the  acts  of  such  officer  for  such  a  length  of 
time  as  to  raise  the  presumption  of  colorable  right  by  elec- 
tion or  appointment11.  It  may  be  said  that  the  color  of  right 
which  constitutes  an  officer  dc  facto  may  consist  in  an  elec- 
tion or  appointment,  or  in  a  holding  over  after  the  expira- 
tion of  ones  term,  or  acquiescence  by  the  public  in  the  acts 

10.     State  v.  Carroll    38  Conn.  11.     Auditor  General  v.   Men- 

499.   approved    in    Auditor    Gen-  omince    Co.,   89    Mich.   .V">2.    ">7r5. 

oral     v.    Menominee     Board,    89  quoting     from,     and     approving 

Mich.  552,  574.  Mechcm,  Pub.  Off.,  8319. 


§45  THE    LAW    OF    TAXATION  66 

of  such  officer  for  such  a  length  of  time  as  to  raise  the  pre- 
sumption of  colorable  right  by  election  or  appointment. 
From  considerations  of  public  policy,  the  law  recog- 
nizes the  official  acts  of  such  parties  as  lawful  to  a  cer- 
tain extent.  It  will  not  allow  them  to  be  questioned  col- 
laterally, and  they  are  valid  as  to  the  public,  and  as  to 
third  persons  who  have  an  interest  in  the  thing  done. 
Within  the  scope  of  his  authority,  the  acts  of  an  officer  de 
jure  are  valid  for  all  purposes.  Not  so  with  an  officer  de 
facto;  his  acts  are  only  recognized  in  the  law  to  be  valid 
and  effectual  so  far  as  they  affect  the  public  and  third  per- 
sons. As  to  these,  his  acts  are  as  valid  as  though  he  were 
an  officer  de  jure.  The  reason  of  the  rule  is  apparent.  It 
would  be  as  unjust  as  unreasonable  to  require  every  indi- 
vidual doing  business  with  such  officer  to  investigate  and 
determine,  at  his  peril,  the  title  of  such  office. 

Third  persons,  from  the  nature  of  the  case,  cannot  always 
investigate  the  right  of  one  assuming  to  hold  an  important 
office,  even  so  far  as  to  say  that  he  has  color  of  title  to  it 
by  virtue  of  some  appointment  or  election.  If  they  see  him 
publicly  exercising  his  authority,  if  they  ascertain  that  this 
is  generally  acquiesced  in,  they  are  entitled  to  treat  him  as 
such  officer,  and,  if  they  employ  him  as  such,  should  not  be 
subjected  to  the  danger  of  having  his  acts  collaterally  called 
into  question.  Besides,  it  is  against  the  policy  of  the  law 
to  allow  a  suit  between  private  individuals  to  determine 
the  title  to  an  office.  Such  judgment  could  only  bind  the 
parties,  and  would  be  of  no  effect  as  against  the  public12. 

12.  Hamlin  v.  Kassefer,  15  holds  the  office  under  some 
Or.  456,  approved  in  89  Mich.  power  having  color  of  authority 
552,  573,  supra.  In  Ex  parte  to  appoint:  and  that  a  statute, 
Strang.  21  Ohio  St.  610,  it  is  though  it  should  be  found  re- 
held  that  the  true  doctrine  is  pugant  to  the  constitution,  will 
that  it  is  sufficient  if  the  officer  give  such  color.  In  Railway 


67 


TOWNSHIP  ORGANIZATION 


546 


$46.     De  Facto  Tax  Officers. 

It  therefore  follows  from  the  preceding  sections  that  in 
so  far  as  the  levying  of  taxes  are  concerned,  the  right  of  a 
de  facto  officer  to  levy  or  collect  them  cannot  be  questioned 
in  a  collateral  attack  upon  the  tax13. 

The  actual  legal  right  of  a  person  who  is  exercising  the 
functions  of  an  office  cannot  be  assailed  in  a  collateral  ac- 
tion between  third  parties;  and  proof  of  user  or  exercise  of 
such  functions  by  anyone  who  knows  the  facts  will  be  suf- 
ficient to  give  'full  sanction  to  his  acts14. 


Co.  v.  Langlade,  56  Wis.  614,  it 
is  held  that  although  the  offi- 
cers were  elective  and  not  ap- 
pointive, and  the  appointments 
made  by  the  Governor  were  in- 
valid, yet  the  offices  were  prop- 
erly created  and  existed  de 
jure;  and  the  persons  appointed 
thereto,  having  entered  upon 
duties  of  such  offices,  were 
officers  de  facto,  and  their  offi- 
cial action  could  not  be  at- 
tacked collaterally.  In  Cole  v. 
Black  River  Falls,  57  Wis.  110, 
it  is  held  that  if  public  offices 
exist  de  jure,  all  persons  who 
are  in  the  exercise  of  the  duties 
of  such  offices  by  color  of  law, 
even  though  such  law  be  after- 
wards declared  to  be  unconsti- 
tutional and  void,  are  officers 
de  facto  and  their  acts  are  valid. 
In  Woodside  v.  Wagg,  71  Me. 
207,  it  is  held  that  if  a  judge 
continue  to  hold  office  and  exer- 
cise the  functions  of  judge  after 
accepting  another  office  which, 
if>so  facto,  under  the  statute, 
vacated  his  office  as  judge,  yet 
he  would  be  an  officer  'de  facto, 
and  with  reference  to  the  public 
and  third  persons,  his  acts,  in- 
cluding judgments  rendered  by 
him,  in  cases  within  the  juris- 
diction of  the  court,  would  be 
valid.  In  Com'r  v.  McCombs, 
Rf>  Pa.  St.  436,  the  court  says, 


"When  he  who  is  exercising  the 
duty  of  an  officer  is  acting  un- 
der the  apparant  authority  of 
an  act  of  the  assembly,  his  title 
to  the  office  is  not  to  be  as- 
5 ailed  collaterally.  An  act  of 
the  assembly,  even  if  it  after- 
ward be  declared  unconstitu- 
tional, is  suincient  to  give  color 
of  title,  and  an  officer  acting 
under  it  is  an  officer  de  facto." 

13.  Stockle     v.     Silsbee.      11 
Mich.  615,  holding  that  the  law- 
ful  acts   of   a   de  facto  collector 
were     valid     whether     he     was 
legally    entitled   to    the    tax    roll 
or  not.     In   Bank  of  St.  Joseph 
v.    St.    Joseph    Twp.,    -16    Mich. 
52fi,    it   is   held   that   the   Town- 
ship   Board    had    power    to   ap- 
point a  necessary  secretary  and 
it   would   be   presumed   that   he 
qualified.      Auditor    General    v. 
Longyear,  110  Mich.  223. 

14.  Facey  v.  Fuller,  13  Mich. 
527;  Johns  v.   People,  25   Mich. 
199.       In     Bird    v.     Perkins,    33 
Mich.    28.   it    was    held   that   the 
appointment      of      a      collector 
would  not  be  inquired  into.     In 
Sibley  v.  Smith.  2  Mich.  487.  it 
is  held  that  the  absence  of  any 
record  in  the  town  books  show- 
ing    that     the     assessors     were 
sworn    .does    not    raise   any   pre- 
sumption   that  they    were    not 


^47,    48  THE    LAW    OF    TAXATION  68 

§47.     Deputy  Officers. 

In  general  a  deputy  may  do  in  his  own  name  as  deputy, 
or  in  the  name  of  his  principal,  whatever  his  principal  is 
authorized  to  do.  A  deputy  county  clerk  may  perform  the 
duties  of  clerk15.  The  deputy  auditor  general  may  act  for 
the  auditor  general16.  A  deputy  county  treasurer  may  act 
for  the  treasurer17  and  a  deputy  collector  may  act  for  the 
collector18. 

§48.     The  Supervisor. 

The  supervisor  acts  in  a  dual  capacity,  as  assessor,  and  as 
a  supervisor  proper.  His  duties  as  assessor  relate  only  to 
the  making  of  the  roll,  the  description  and  valuation  of 
property,  etc.,  preparatory  to  the  submission  of  the  roll  to 
the  board  of  supervisors;  and  upon  the  submission  of  the 
roll  to  that  body,  his  duties  as  assessor  cease  and  those  of 
the  supervisor  begin. 

As  supervisor,  he  cannot  impose  any  tax  unless  it  has 
been  previously  authorized  by  competent  authority  and  duly 
certified  to  him  by  the  proper  officers.  If,  as  supervisor,  he 
attaches  his  warrant  to  the  roll  when  he  has  imposed  taxes 
without  authority,  he  will  be  liable  in  damages  to  a  person 
injured  thereby.  He  will  not  be  justified,  however,  in  re- 
fusing to  attach  his  warrant  to  a  roll  properly  certified  be- 
cause either  himself  as  assessor,  or  the  board  of  review  or 
the  board  of  supervisors  who  have  power  to  review  his 
roll,  have  made  erroneous  descriptions  therein,  nor  will  he 
be  personally  liable  therefor.  Otherwise,  all  of  the  valid 

15.  Callender     v.     Olcott,     1          17.     Maloney      v.      Mahar,      1 
Mich.  344.  Mich.    26:    Britton   v.    Ferry,    14 

16.  People  v.  Johr,  22  Mich.       Mich.  53. 

461 ;     Westbrooke     v.    Miller,     58          18.     Bird  v.  Perkins,  33  Mich 
Mich.   148,  151.  28. 


<i!t  TOWNSHIP  ORGANIZATION,  i    lx 

taxes  of  a  township  might  not  be  collected  because  of  one 
erroneous  description19. 

It  is  his  duty  to  assess  property  at  its  true  cash  value; 
and  where  he  wilfully  assesses  it  above  its  value  and  above 
the  assessment  of  other  persons,  with  a  fraudulent  intent  to 
compel  the  owner  to  pay  an  undue  proportion  of  the  public 
taxes,  equity  will  restrain  the  excess20. 

When  acting  as  assessor  he  is  a  quasi- judicial  officer,  and 
in  the  exercise  of  his  judicial  duties  he  cannot  be  held  liable 
in  a  suit  at  law  for  errors  he  may  have  made.  He  comes 
within  the  rule  that  they  who  are  entrusted  to  judge  ought 
to  be  free  from  vexation  that  they  may  determine  without 
fear. 

It  is  his  duty  to  determine  the  property  to  be  assessed, 
the  persons  to  whom  it  should  be  assessed,  and  their  resi- 
dence. In  this,  he  is  not  bound  to  follow  the  statement  of 
any  person  but  may  follow  his  own  judgment91.  In  this 
action  he  acts  judicially  under  his  official  oath2-. 

19.  Lacey  v.   Davis,  4   Mich.  fendant    for   not   assessing   cer- 
103.      In    Moses    v.    Cummings,  tain   real    estate    to   him   as   re- 
44  Mich.  359,  it  is  held  that  the  quested.      Had    the    real    estate 
wrong  in  assessing  property  on  been   assessed  to  him  he  could 
a  false  valuation   should  be  re-  have  used  a  certain  toll  bridge 
dressed  by  a  public  prosecution.  in     that     township     free.       The 

20.  Merrill    v.    Auditor    Gen-  supervisor     held    that  the    pur- 
eral.   24    Mich.    170.      In    Moses  chase    was    not    made    in    good 
v.    Cummings,    44    Mich.    359,    it  faith   and  refused  to  assess  the 
is   held   that   no   action    will   lie  land    to    him.      Held,    that    no 
against  the  officer  for  assessing  action    would   lie    in    any   event 
property    on    a    false    valuation  unless     plaintiff    had     first     ap- 
except     for     fraud     or     malice  pealed  to  the  board  of  review; 
In    Maurer    v.    Cliff,    94    Mich,  and    also    that   the    supervisor 
194.  it  is  held  that  a  mandamus  was  acting  within  his  sound  dis- 
will  not  lie  to  compel  a  super-  cretion. 

visor     to     place     omitted     prop-  22.     See     Board     of     Review. 

erty  upon  the  roll  after  it  is  too  eral,  52  Mich.  28;  Pioneer  Iron 

late    to   bring   the    same   before  §92.    Woodman  v.  Auditor  Gen- 

the  board   of  review.  Co.  v.  Negaunee,  116  Mich.  430; 

21.  In    Meaue   v.    Haines,   81  Wall  v.  Trumbull.  16  Mich.  236. 
Mich.  261.  nlaintiff  sued  the  de- 


§48 


•THE    LAW    OF    TAXATION 


70 


In  determining  the  necessary  'facts  to  make  out  his  roll, 
it  is  the  duty  of  the  supervisor  to  furnish  a  blank  statement 
to  each  taxable  inhabitant  to  set  forth  his  taxable  property 
thereon;  and  the  supervisor  may  be  indicted  for  not  so 
doing23. 

He  is  required  to  preserve  and  keep  the  assessment  roll  in 
his  office,  and  officially  he  has  the  absolute  and  exclusive 
right  to  the  possession  of  it,  and  may  bring  suit  in  his  of- 
ficial capacity  for  its  recovery24.  A  requirement  of  the  De- 
troit charter  that  the  roll  shall  be  delivered  July  1,  and  that 
forthwith  six  days'  notice  by  publication  shall  be  given  in  a 
daily  newspaper,  the  term  "forthwith"  does  not  necessarily 
mean  "instanter,"  but  may  mean  with  all  reasonable  and 
proper  diligence  or  celerity.  Therefore,  a  publication  on 


23.  C.  L.  '97.  §3841,  as 
amended  by  Act  239  of  Public 
Acts  of  1899,  provides  that  the 
supervisor  shall  ascertain  the 
taxable  property  of  his  district. 
"For  this  purpose  he  shall  re- 
quire every  person  of  full  age 
and  sound  mind  who  the  super- 
visor or  assessor  believes  has 
property  which  is  not  exempt 
from  taxation,  to  make  and  sub- 
scribe to  a  true  and  correct 
written  statement,  under  oath, 
administered  by  such  supervisoi 
or  assessing  officer,  or  other 
officer  qualified  to  administer 
oaths  under  the  laws  of  this 
state,  of  all  the  taxable  prop- 
erty of  such  person,  firm  or 
corporation,  whether  owned  by 
him  or  it,  or  held  for  the  use 
of  another,  and  it  shall  be  the 
duty  of  every  such  person,  firm 
or  corporation,  to  make  such 
statement  under  the  following 
form  of  oath,  duly  administered 
by  the  supervisor  or  assessing 


officers."  The  form  of  oath  is 
there  set  out.  C.  L.  §3842  sets 
forth  the  questions  which  are 
to  be  answered;  C.  L.  §3843 
provides  that  the  answers  to 
such  questions  shall  not  be 
deemed  conclusive,  and  that 
such  statements  may  be  used 
in  any  proceedings  affecting  the 
assessment  in  question.  C.  L. 
§3844  makes  the  wilful  refusal 
to  answer  such  questions,  or 
false  answers  to  the  same,  a 
misdemeanor  punishable  by  fine 
and  imprisonment.  C.  L.  §3846 
makes  such  statement  privi- 
leged, not  to  be  used  for  any 
purpose  excepting  that  above 
mentioned.  Turner  v.  Circuit 
Judge,  95  Mich.  1.  In  Gratwick 
etc.  Lumber  Co.  v.  Village  of 
Oscoda,  97  Mich.  221,  it  is  held 
that  the  general  tax  law  of  1891 
did  not  compel  the  supervisor 
to  furnish  the  blank  statements. 
24.  R.  S.  1846,  p.  91;  Phenix 
v.  Clark,  2  Mich.  328. 


71  TOWNSHIP  ORGANIZATION  §§49,50 

the  first  seven  days,  excepting  the  Fourth,  a  legal  holiday,  i- 
sufficient2*. 

§49.     Supervisor,  Suit  for  Taxes. 

When  the  remedy  provided  by  statute  for  collecting  taxes 
has  been  exhausted  by  the  collector,  and  he  has  returned 
his  roll,  the  supervisor  may  institute  suit  for  an  unpaid  tax. 
The  levy  by  the  collector  and  suit  by  the  supervisor  are  not 
concurrent  remedies;  the  suit  by  the  supervisor  cannot  be 
commenced  until  the  collector's  right  to  levy  has  expired26. 

§50.     Supervisor.     Change  in  Roll. 

The  first  roll  is  to  remain  in  the  hands  of  the  supervisor 
as  a  public  record;  the  collection  roll  goes  ultimately  into 
the  treasurer's  office  for  the  same  purpose.  The  law  con- 
templates that  these  documents  shall  be  and  remain  sub- 
stantially alike,  and  in  all  essential  particulars  speak  the 
same  language  when  referred  to.  Any  alteration  in  the 
collector's  roll  which  creates  a  discrimination  between  the 
two,  renders  the  collector's  roll  void27. 

Statutory  Provision. 

C.  L.  '97,  §3865,  Tax  Law,  §42: 

"The  supervisor  shall  thereupon  prepare  a  copy  of 
the  said  assessment  roll,  with  the  taxes  assessed  as 
hereinbefore  provided,  and  annex  thereto  a  warrant 

25.  Walker    v.    Detroit,    138  27.     Ferton      v.      Feller,      33 
Mich.  538.  Mich.  199.    The  board  of  super- 

26.  See    actions    to    enforce  visors    had    ordered    alterations 
Tax.   §405,   post.     Bangor  Two.  in    the   collectors   roll.     Such   a 
v.  Smith  Transp.  Co.,  106  Mich,  change   is   not   a   formal  defect 
223;    Decatur    Twp.    v.    Copley,  cured    by    the    healing    statute, 
133    Mich.    546;    Deerfield   Twp.  and  the  changed  roll  is  void. 

v.  Harper,  115  Mich.  678. 


§50  THE    LAW    OF    TAXATION  72 

signed  by  him,  commanding  the  township  or  city  treas- 
urer to  collect  the  several  sums  mentioned  in  the  last 
column  on  such  roll  and  to  retain  in  his  hands  the 
amounts  receivable  by  law  into  the  township  treasury 
for  the  purposes  therein  specified,  and  to  pay  over  to 
the  county  treasurer  the  amounts  which  shall  have  been 
collected  for  state  and  county  purposes  up  to  and  in- 
cluding the  tenth  day  of  January  next  following,  within 
three  days  thereafter,  and  the  remainder  of  the 
amounts  therein  specified  for  said  purposes,  and  ac- 
count in  full  for  all  moneys  received  on  or  before  the 
first  day  of  March  next  following;  *  *  * 

When  the  supervisor  has  completed  and  certified  to  his 
roll,  presented  it  to  the  board  of  supervisors,  and  received 
it  back  with  the  signature  of  the  chairman  affixed  thereto, 
he  cannot  make  any  substantial  alterations  either  by  adding 
new  parcels  or  by  increasing  the  assessment  of  a  parcel 
already  on  the  roll.  If  he  does,  it  will  vitiate  the  entire 
roll.  Public  policy  will  not  permit  of  any  tampering  with 
the  roll,  notwithstanding  the  intention  be  good,  and  thi 
tax  payer  not  injured28.  When  a  supervisor  fraudulently 
changes  the  valuation  upon  his  roll  after  it  has  gone  into 
the  hands  of  the  board  of  review,  it  will  vitiate  the  tax29. 

28.  Webster  v.  Monroe,  84  been  completed  and  reviewed, 
Mich.  341;  Clark  v.  Axford,  vitiated  the  entire  roll,  under 
5  Mich.  182,  190.  In  Auditor  Act  206  of  Public  Acts  of  1893. 
General  v.  Hughitt,  132  Mich.  29.  Laing  v.  Forest  Twp., 
311,  it  is  held  that  fraudulently  139  Mich.  159.  where  the  super- 
reducing  the  valuations  of  cer-  visor  made  about  40  alterations, 
tain  parcels  after  the  roll  had 


CHAPTER  IV. 
THE  ASSESSMENT  AND  LOCUS  OF  PROPERTY. 

951.  Real   Estate. 

§52.  To  whom  Real  Estate  Assessed. 

§53.  Homestead  Lands.     Designation  of 

§54.  Homestead  Lands.     Interest  in 

§55.  Corporate  Realty. 

§56.  Tenants  in  Common. 

§57.  Exemptions  from  Taxation. 

§58.  Exemptions  of  Public   Property. 

§59.  Exemptions  of  Educational  Institutions. 

§60.  Exemptions  of  Railroad  Property. 

§61.  Personal   Property. 

§62.  Personal  Property,  Vessels. 

§63.  Personal  Property,  Choses  in  Action. 

§64.  Personal   Property,   Mortgages. 

§65.  Stock  of  Corporation. 

§66.  Savings  Banks. 

§67.  Banks. 

§68.  Collection  of  Tax  on   Bank  Stock. 

§69.  National  Banks. 

§70.  Exemptions  of  Copy    Rights.    Etc. 

§71.  Exemptions  of  Personal  Property. 

CROSS-REFERENCES. 

Exemptions  of  Church  Property,  Special  Assessment,  §345. 
Exemption  of  Public  Property,  Special  Assessment,  §346.  Contracts 
to  Exempt  Property,  §347.  Residents  and  Non-residents,  Special  As- 
sessment, §348.  Special  Assessments  for  Drains,  §282. 


§51.     Real  Estate. 

All  lands  and  fixtures  thereon,  unless  specially  excepted, 
are  assessable  as  real  estate.  It  cannot  affect  the  question 
that  the  title  in  fee  to  the  land  is  in  one  person,  and  the 
buildings  or  other  fixtures  are  in  another.  These  build- 
ings, fixtures,  and  appurtenances  are  a  part  and  parcel  of 


§51  THE    LAW    OF    TAXATION  74 

the  realty.  The  ownership  o'f  timber  standing  and  growing 
on  land  is  an  interest  in  the  land  itself,  and,  under  this  stat- 
ute, assessable  as  realty1. 

Statutory  Provision. 

C.  L.  '97,  §3825,  Tax  Law,  §2 :  "For  the  purpose 
of  taxation,  real  property  shall  include  all  lands  within 
the  state,  and  all  buildings  and  fixtures  thereon,  except 
such  as  are  expressly  exempted  by  law." 
When  the  soil  is  owned  by  one  party,  and  the  timber  by 
another,  each  interest  should  be  assesse'd  separately.  Where 
the  entire  interest,  soil  and  timber,  is  assessed  to  the  owner 
of  the  timber  after  notice  to  the  supervisor  of  the  real  own- 
ership, the  entire  tax  will  be  void  although  such  owner  did 
not  appear  before  the  board  of  review.  This  is  not  a  case 
of  over-assessment2.  Where  timber  js  cut  from  land  by  a 
trespasser  who  afterwards  acquires  title  to  the  land,  he 
does  not  acquire  title  to  the  timber  so  wrongfully  cut3. 
Riparian  rights  upon  a  body  of  water  is  such  an  interest 
in  real  estate  that  it  may  be  assessed  separately  from  the 
other  ownership  of  the  premises.  Thus,  an  upland  sur- 
rounding a  lake  may  be  assessed  to  one  party  and  the  soil 
under  the  water  of  the  lake  may  be  assessed  to  another4. 
Buildings  upon  leased  lands  are  taxable  as  personal  property5. 
Pipes  of  a  water  company  laid  upon  its  own  lands  are 
real  estate  and  assessable  where  located6 ;  but  such  pipes 
laid  within  the  streets  and  alleys  o'f  a  city  are  assessable  as 

1.  Fletcher   v.   Alcona   Twp.,          4.     Newaygo    Portland    Cem- 
72  Mich.  18,  23.  ent    Co.    v.    Sheridan   Twp.,   137 

2.  Ward    v.    Echo   Twp.,   145       Mich.  475. 

Mich.   56;   People   v.   Com'rs,  82  5.     See   C.   L.    §3831,   Sub.   11. 

N.   Y.   462;   In   re    Pine   Co.,   5«  6.     Monroe      Water     Co.      v. 

Minn.    288.  Frenchtown     Twp.,      98      Mich. 

3.  Hickey    v.     Rutledge,    136  432. 
Mich.   128. 


;.'.  ASSESSMENT  AND  LOCUS  OF  PROPERTY 

personal  property  where  located7.     A  railroad  owned  by  a 
partnership  is  properly  assessable  as  real  property*. 

£52.     To  Whom  Real  Estate  Assessed. 

The  statute  requires  real  estate  to  be  assessed  in  the 
township  where  situated,  to  the  owner  if  known,  and  also  to 
the  occupant,  if  any;  if  the  owner  is  unknown,  then  to  the 
occupant;  and  if  there  be  no  occupant,  then  it  shall  be  as- 
sessed as  unknown.  The  life  tenant  should  pay  the  taxes,  and 
it  therefore  follows,  where  there  is  a  life  estate,  that  the 
premises  should  be  assessed  to  such  tenant  by  the  assessing 
officer9.  The  occupant  of  land  need  not  be  a  resident  upon 
it.  Occupancy  may  consist  of  actual  cultivation  without  resi- 
dence, or  of  an  actual  residence  thereon  by  the  tenant10.  An 
assessment  of  land  in  a  township  where  it  does  not  lie  is 
void  although  it  is  not  assessed  at  all  in  the  proper  town- 
ship11. It  is  a  question  of  fact  as  to  who  may  be  the  owner 
of  real  estate12,  and  taxes  cannot  be  avoided  by  conveying 
land  merely  to  escape  liability  therefor13.  Where  land  of 
two  owners  is  assessed  as  one  parcel  to  one  of  them,  the 
tax  is  not  thereby  void ;  either  may  have  the  assessment  cor- 
rected before  the  board  of  review.  Either  may  pay  his 


7.  C.   L.  '97,   §3831,   Sub.   16;  life    tenant    to    pay    the    taxes, 
Grand  Haven  v.  Water  Co.,  119  following    Smith    v.    Blindbury, 
Mich.   652.  66   Mich.  319;   Austin  v.   Hynd- 

8.  Mitchel     v.     Lake     Twp.,  man,  119  Mich.  615;  Watkins  v. 
126  Mich.  367.  Green,  101   Mich.  493.     See  also 

9.  For    decisions    upon    this  "Purchasers." 

section  see  "To  whom  property  10.     Cummines        v.         State 

may     be     assessed,"     discussed  Treasurer,  7  Mich.  365. 

under  the  healing  statue,  C.  L.  11.     Taylor      v.     Youngs,     48 

'97.   §3922.     In   Dubois  v.   Cam-  Mich.  268. 

pau,  24  Mich.  360,  it  is  held  that  12.     Loud    &     Sons     Lumber 

one  who  claims  title  is  in  duty  Co.  v.  Hagar.  118  Mich.  452. 

bound    to  pay    the    taxes.      In  13.     Loud     &    Sons     Lumber 

Jenks  v.  Morton.  96  Mich.  13.  it  Co.   v.    Elmer   Twp..   118   Mich. 

is  held  that  it  is  the  duty  of  the  452. 


§53  THE    LAW    OF    TAXATION  ?  U 

pro  rata  share  of  the  tax,  or  during  the  year  of  redemption 
may  redeem  his  pro  rata  interest14. 

Statutory  Provision. 

C.  L.  '97,  §3826,  Tax  Law,  §3,  provides:  "Real  prop- 
erty shall  be  assessed  in  the  township  or  place  where 
situated,  to  the  owner  if  known,  and  also  to  the  occu- 
pant, if  any;  if  the  owner  be  not  known,  and  there  be 
an  occupant,  then  to  such  occupant,  and  either  or  both 
shall  be  liable  for  the  taxes  on  said  property,  and  if 
there  be  no  owner  or  occupant  known,  then  as  un- 
known. A  trustee,  guardian,  executor,  administrator, 
assignee  or  agent,  having  control  or  possession  of  real 
property,  may  be  treated  as  the  owner.  The  real  prop- 
erty which  belonged  to  a  person  deceased,  not  being 
in  control  of  an  executor  or  administrator,  may  be  as- 
sessed to  his  heirs  or  devisees  jointly,  without  naming 
them,  until  they  shall  have  given  notice  of  their  respec- 
tive names  to  the  supervisor,  and  of  the  division  of  the 
estate." 

§53.     Homestead  Lands.     Assignment  of, 

Failure  to  pay  the  taxes,  or  to  redeem  or  purchase  lands 
bid  in  by  the  state,  for  three  consecutive  years,  where  the 
lands  are  unoccupied,  is  by  statute  made  prinia  facie  evi- 
dence of  abandonment  by  the  owner.  The  design  appears 
to  have  been  to  subject  portions  of  the  state's  domain  to 
the  purposes  contemplated,  not  lands  which  the  state  did 
not  own.  It  was  not  the  policy  of  the  legislature  to  sub- 
ject all  state  lands  to  this  disposition,  viz.,  homestead  lands; 
but  it  limited  them  to  the  barren,  swamp,  or  worthless  and 

14.     Kennedy        v.        Auditor      General,   134   Mich.   534. 


;  ",  ASSESSMENT  AND  LOCUS  OF  PROPERTY 

unoccupied  lands.  It  sought  to  exclude  from  the  lists  lands 
upon  which  there  was  reason  to  hope  that  the  taxes  might 
be  paid,  or  the  lands  purchased;  hence  the  inquiry  as  to 
the  abandonment  and  this  provision  as  to  prinia  facie  evi- 
dence. This  statute  does  not  apply  where  the  title  of  the 
state  fails,  as  where  the  tax  sales  upon  which  the  lands  were 
bid  in  to  the  state  were  void;  in  such  a  case,  the  state  had 
no  title  to  convey ;  the  presumption  arises  only  in  case  of 
valid  tax  sales  to  the  state15.  It  was  not  the  intention  of 
the  legislature  to  place  lands  actually  occupied  in  the  category 
of  homestead  lands.  Where  the  record  shows  that  part  is 
so  occupied,  the  conveyance  as  to  that  part  will  be  void16. 

Under  the  act  of  1899,  lands  delinquent  for  taxes  for  any 
five  years,  where  such  lands  have  been  sold  and  bid  off  to 
the  state,  and  then  so  held,  and  no  application  having  been 
made  to  pay,  purchase  or  redeem  such  lands,  shall  be  deemed 
abandoned  lands  within  the  provisions  of  the  acts.  A  deter- 
mination of  these  facts  in  writing,  by  the  auditor  general, 
is  not  essential  to  make  the  title  absolute  in  the  state. 
Whether  or  not  suits  are  pending,  need  not  appear,  as  it  is 
impossible  for  the  auditor  general  to  make  such  a  deter- 
mination. 

The  good  or  bad  'faith  of  the  examiner  cannot  be  ques- 
tioned ;  and  the  finding  of  facts  by  the  auditor  general  is 

15.     Platz    v.    Englehardt,   138  uated;     and     provides     that     no 

Mich.    485,    489;    ejectment    will  suit   shall    be   brought   to   annul 

lie    by    the    original    owner    in  such        determination        unless 

such    case.      The    statute    gives  brought      within      six      months 

the    auditor    general    and    land  thereafter.      Semer    v.    Wildey, 

commissioner      power     to      set  133  Mich.  569. 
aside     such     tax     lands,     which          16.     Meagher    v.    Dumas,    143 

have  been  delinquent  for  three  Mich.   639;    the   court   does   not 

years  or  more,  and  are  barren,  determine    whether    the    report 

swamp,  or  worthless,  when  re-  of   the   examiners   is   conclusive- 

auested  so  to  do  by  the  town-  or  not. 
ship  board   where  they  are   sit- 


§53  THE    LAW    OF    TAXATION  78 

final.  The  omission  of  the  auditor  general  to  certify  to  the 
years  for  which  the  lands  are  delinquent,  and  the  number  of 
times  it  has  been  bid  off  to  the  state  is  immaterial  where 
the  records  showing  these  facts  exist  in  his  office17. 

In  order  to  give  the  auditor  general  jurisdiction  to  con- 
vey state  tax  lands  to  the  land  commissioner  as  homestead 
lands,  the  lands  must  have  remained  delinquent  the  length 
of  time  specified  by  the  statute,  and  the  period  of  redemp- 
tion by  the  original  owner  must  have  expired.  When  the 
lands  have  been  bid  into  the  state,  and  such  sales  cancelled, 
and  the  lands  again  offered  for  sale  tinder  subsequent  pro- 
ceedings, the  time  begins  to  run  from  the  date  of  the  last 
sale.  Where  lands  have  been  prematurely  deeded  as  home- 
stead lands,  the  owner  may  bring  ejectment  for  their  recov- 
ery. Act  84  of  Public  Acts  of  1903,  fixes  the  time  within 
which  action  must  be  commenced  to  recover  such  lands ;  and 
until  that  period  has  expired,  the  deed  of  the  lands  as  home- 
stead lands  is  not  even  prima  facie  evidence  of  title.  When 
the  original  owner  recovers  such  lands,  the  amount  paid  to 
the  state  by  the  purchaser  cannot  be  made  a  lien  upon  the 
land18. 

Such  land  is  prima  facie  the  property  of  the  state;  and 
while  the  true  owner  might  controvert  the  state's  title,  he 
would  be  in  no  way  concerned  with  the  disposition  of  the 
land  if  the  title  of  the  state  was  valid.  When  the  land  is 
brought  within  the  jurisdiction  of  these  state  officers,  and 
they  have  acted,  such  action  cannot  be  overturned  by  a  parol 
showing  that  the  land  was  not  barren,  swamp,  worthless,  or 

17.  Alcona   Board  v.  Auditor  come    absolute    in    the    state    in 
General.  138  Mich.  491,  499.  ^ix    months    after    the    deed    to 

18.  Morse    v.    Auditor    Gen-  the    state    shall    have   been    rec- 
eral.    143    Mich.    010.      This    act  orded  in   the  county  where  the 
provides  that  the  title  shall  be-  -  lands  are  situate. 


7!»  ASSESSMENT  AND  LOCUS  OF  PROPERTY 

abandoned.  This  is  similar  to  the  holding  of  the  United 
States  courts  that  they  could  not  review  the  action  of  the 
land  commissioner  in  designating  lands  under  the  State 
Swamp  Land  grants19. 

After  the  lands  have  been  set  apart  as  state  homestead 
lands,  the  auditor  general  has  no  authority  to  cancel  a  deed ; 
this  can  only  be  done  by  the  courts.  In  the  first  instance, 
the  auditor  general  and  the  state  land  commissioner  deter- 
mine whether  delinquent  tax  lands  shall  be  set  apart  as 
homestead  lands.  They  are  required  to  ascertain  whether 
the  lands  have  been  delinquent  tax  lands  for  five  years  or 
more ;  if  they  have  been  bid  off  to  the  state  for  one  or  more 
times ;  if  the  time  of  redemption  has  expired ;  if  no  applica- 
tion has  been  made  to  pay,  redeem  or  purchase  the  same; 
and  if  no  action  is  pending  in  the  circuit  court  of  the  county 
where  the  land  is  situated  to  set  aside  the  taxes,  or  to  re- 
move the  cloud  on  the  title  occasioned  thereby.  It 
these  things  are  found,  the  statute  provides  that  "the 
title  to  the  state  shall  be  deemed  absolute  in  and  to  said 
lands."  Pursuant  to  this  determination,  the  auditor  general 
then  issues  his  deed  to  the  state.  The  provision  of  the  stat- 
ute requiring  such  action  to  be  assailed  within  six  months 
after  the  passage  of  the  act,  or  after  the  action  of  the  audi- 
tor general,  is  valid20. 

The  commissioner  of  the  land  office  is  required  to  deed 
these  lands  upon  application  made  in  good  faith.  This  vests 
in  him  the  power  to  determine  the  good  faith  of  each  ap- 
plicant ;  and  his  discretion  in  this  matter  will  not  be  reviewed 
by  mandamus21. 

19.  Semer     v.      Wildcy,      133  S.   R.   Co.  v.  Solomon   Lumber 
Mich.   569.  Co..   146   Mich.   204. 

20.  State       Land       Commis-          21.     Beebe    v.     Commissioner 
sioner   v.    Auditor   General,    131  of  Land  Office,  137  Mich.  48. 
Mich.    147;    Jackson,    Lansing, 


$53  THE  LAW  OF  TAXATION  80 

Statutory  Provision. 

C.  L.  '97  §3949  as  amended  by  Act  107  of  Public 
Acts  of  1899,  Tax  Law,  §1527: 

"Lands  delinquent  'for  taxes  for  any  five  years, 
where  said  lands  have  been  sold  and  bid  off  to  the  state 
for  the  taxes  of  one  or  more  of  said  years,  and  then  so 
held,  and  no  application  having  been  made  to  pay,  pur- 
chase or  redeem  the  said  lands  for  the  said  taxes,  and 
no  action  pending  to  set  aside  such  taxes  or  to  remove 
the  cloud  occasioned  thereby,  shall,  within  the  mean- 
ing of  this  act,  be  deemed  abandoned  lands,  unless 
such  lands  are  actually  occupied  by  the  person  having 
the  record  title  thereto.  Any  lands  delinquent  for  taxes 
for  a  period  of  five  or  more  years,  and  said  lands  hav- 
ing been  sold  and  bid  in  by  the  state  for  the  taxes  of 
any  of  said  years,  and  no  application  having  been  made 
to  pay,  redeem  or  purchase  the  same,  and  not  suit  pend- 
ing to  set  aside  said  taxes  or  remove  the  cloud  from 
the  title  occasioned  thereby  shall  be  subject  to  the  pro- 
visions of  this  section.  *  *  * 

"The  finding  and  determination  of  the  auditor  gen- 
eral and  the  commissioner  of  the  land  office  shall  show : 

"First.     A  description  of  said  lands. 

"Second.  The  years  for  which  they  have  been  re- 
turned delinquent  for  taxes. 

"Third.  The  time  or  times  bid  off  to  the  state,  and 
the  taxes  for  which  said  bid  was  made. 

"Fourth.  \Yhether  said  lands  are  occupied  or  aban- 
doned. 

"Fifth.  Whether  or  not  any  suit  is  pending  in  the 
county  where  said  lands  are  situated  to  set  aside  the 
taxes,  or  any  of  them,  or  to  remove  the  cloud  occa- 


81  ASSESSMENT  AND  LOCUS  OF  PROPERTY 

sioned  thereby."  This  section  further  provides  that 
such  determination  shall  be  conclusive  unless  assailed 
within  six  month  after  it  is  made. 

Act  No.  130  of  Laws  of  11)07,  as  amended  by  Act 
No.  99  of  Laws  of  1909,  provides  for  refunding  the 
purchase  price  to  the  purchaser,  where  the  deed  from 
the  -auditor  general  to  the  land  commissioner  was  void 
because  the  premises  were  in  fact  actually  occupied 
by  the  person  having  the  record  title  thereto  at  the 
time  of  making  and  recording  the  determination  re- 
lating thereto,  by  the  auditor  general  and  land  com- 
missioner. 

See  §216,  post,  as  to  limitations  in  re  State  Home- 
stead lands. 

§54.     Homestead  Lands.    Interest  in,  or  Title  To, 

These  lands,  when  the  licensee  is  ready  to  make  final 
proof  and  obtain  a  patent  for  the  same,  are  to  be  assessed 
as  real  estate.  The  interest  of  the  holder  otf  part  paid  cer- 
tificates for  the  purchase  of  any  state  land  is  to  be  assessed 
separate  from  other  property.  The  roll  shall  describe  the 
land  and  state  the  title  thereto  is  in  the  state.  If  the  taxes 
are  not  paid,  it  provides  for  their  return.  Such  an  interest 
becomes  the  individual  property  o'f  the  holder,  and  is  sub- 
ject to  the  taxing  pqwer  of  the  state22. 

A  tenant  who  goes  into  possession  of  land,  canno.t  allow 
it  to  be  returned  for  taxes,  when  he  has  agreed  to  pay  them, 
and  purchase  the  same  land  from  the  state  as  homestead 

22.     Robertson         v.         Land  paid  swamp  lands  was  passed  in 

Com'r,  44  Mich.  274;  originally,  1858.      In    Attorney    General    v. 

under    5792,    C.    L.    1857,    these  A.   P.   Cook  Co.,  122   Mich.  453, 

interests  were  deemed  personal  the    defendant    was    ordered    to 

property.     The    first    law    auth-  pay  all  valid  back  taxes  before 

orizing     the     taxation     of    part  the  state  issued  a  patent  to  him. 
(6) 


§  55  THE  LAW  OF  TAXATION  82 

land,  where  it  was  set  over  as  such  because  of  the  delin- 
quency of  the  taxes  he  had  agreed  to  pay.  If  the  state  is 
reimbursed,  the  sale  and  setting  of  the  lands  over  to  the 
state  will  be  set  aside,  though  more  than  six  months  have 
elapsed23.  See  §216,  as  to  limitation  of  actions. 

Statutory  Provision. 

C.  L.  '97,  §3827,  Tax  Law,  §4,  provides:  "All  li- 
censed homestead  lands,  the  fee  of  which  is  in  the  state, 
when  the  licensee  is  entitled  to  make  final  proof  to 
obtain  a  patent  for  the  same,  shall  be  assessed  and 
treated  as  real  property.  The  interest  in  land  of  any 
person  holding  part  paid  certificates  for  the  purchase 
of  any  state  lands  shall  be  assessed  separate  from  other 
property.  The  assessment  shall  describe  the  land  and 
shall  state  therein  that  the  title  is  in  the  state.  The 
taxes,  if  not  paid  to  the  township  treasurer,  shall  be 
returned  and  collected  as  hereinafter  provided." 

§56.     Corporate  Realty. 

This  property  is  assessed  the  same  as  that  of  an  individual. 
Stock  of  a  corporation  which  may  own  property  is  taxable  to 
the  stockholder  at  his  place  of  residence24. 

Statutory  Provision. 

C.  L.  '97,  §3828,  Tax  Law,  §5 :  "The  real  property 
of  a  corporation  shall  be  assessed  to  the  name  of  a  cor- 
poration as  to  an  individual,  if  kno(wn,  in  the  township 
or  place  where  situated,  or  it  may  be  assessed  to  the 
occupant  or  to  any  authorized  agent  if  so  requested  of 
the  supervisor." 

23.  Dixon  v.  Ludington,  130  24.  Graham  v.  St.  Joseph 
Mich.  269.  Twp.,  67  Mich.  652. 


83 


ASSESSMENT  AND  LOCUS  OF  PROPERTY   §§  56,  57 


$56.     Tenants  in  Common. 

Undivided  interests  in  lands  owned  by  tenants  in  common, 
not  being  copartners,  may  be  assessed  to  the  owners  thereot, 
if  so  requested  and  in  the  discretion  of  the  supervisor25. 

C.  L.  '97,  §3829,  Tax  Law,  §6:  "Undivided  interests 
in  lands  owned  by  tenants  in  common,  not  being  co- 
partners, may  be  assessed  to  the  owners  thereo.f,  if  so 
requested,  and  in  the  discretion  of  the  supervisor." 
Parties  owning  as  husband  and  wife  are  not  tenants  in 
common;  each  owns  in  entirety36. 

§57.     Exemption  from  Taxation. 

The  legislature  may  remit  taxes  upon  any  class  of  prop- 
erty, and  for  a  consideration,  may  remit  taxes  upon  partic- 
ular lands  or  property27. 


25.  In    Thompson    v.    Noble, 
108    Mich.    26,   it    is    held    to   be 
the    duty    of    a    vendee,    as    be- 
tween   himself    and    vendor,    to 
pav  the  taxes  on  his  individual 
interest,  assessed  after  his  pur- 
chase. 

26.  Fisher      v.      Provin,      25 
Mich.  347. 

27.  In      People     y.     Auditor 
General,  7  Mich.  84,  it  was  held 
competent    for    the    legislature 
to    except  from    taxation    lands 
donated  for  the  construction  of 
the   ship  canal  for   a   period   of 
five   years,    if   not    sooner    sold. 
In  Parmalee  v.  Chicago,  60  111. 
267,  it  is  held  that  the  legisla- 
ture  may   authorize   a   town    to 
commute,  or  remit,  a  tax  for  a 
consideration.       In     People     v. 
Barger.    62    111.    452,    it    is    held 
that      the      legislature      cannot 
exempt  a  city  from  state  taxes 
and    impose    the    burden    upon 
the  rest  of  the  state.     In   East 


Saginaw  Mfg.  Co.  v.  East  Sag- 
inaw,  19  Mich.  259,  the  act 
exempting  property  engaged  in 
manufacturing  salt  from  taxa- 
tion, was  in  question.  It  was 
held  that  the  act,  if  valid,  was 
not  a  contract,  and  could  be  re- 
pealed. In  Tucker  v.  Ferguson, 
22  Wall.  527,  it  is  held  that  a 
statute  exempting  a  railroad 
company  from  taxation  is  revo- 
cable at  pleasure,  unless  based 
upon  a  consideration.  In  Peo- 
ple v.  Auditor  General,  9  Mich. 
134,  a  provision  exempting 
bounty  lands  from  taxation  for 
three  years  was  sustained.  In 
Board  of  Supervisors  v.  Audi- 
tor General,  63  Mich.  408,  a 
prant  of  swamn  lands  in  aid  of 
a  railroad  company,  exempted 
such  lands  from  taxation  for 
three  years.  Held,  valid,  and 
that  the  court  could  not  in- 
quire into  the  consideration. 
Wolcott  v.  People,  67  Mich.  91. 


§  57  THE  LAW  OF  TAXATION  84 

A  municipality  may,  also,  for  a  consideration,  agree  to 
hold  a  corporation  within  its  limits,  harmless  from  city 
taxes28. 

Statutory  Provision. 

C.  L.  '97,  §3830,  Tax  Laws,  §7,  as  amended  by 
act  175  of  Laws  of  1909. 

"Sub.  5  .  All  houses  of  public  worship,  with  the  land 
on  which  they  stand,  the  furniture  therein,  and  all  rights 
in  the  pews,  and  also  any  parsonage  owned  by  any 
religious  society  of  this  State  and  occupied  as  such. 

"Sub.  6.  All  lands  used  exclusively  as  burial 
grounds,  and  the  rights  of  burial  therein,  and  the 
tombs  and  monuments  therein,  while  reserved  and  in 
use  for  that  purpose :  Provided,  That  the  stock  of  any 
corporation  owning  such  burial  grounds  shall  not  be 
exempt ; 

"Sub.  7  .  The  real  and  personal  property  of  persons 
who,  in  the  opinion  of  the  supervisor  and  bqard  of 
review,  by  reason  of  poverty,  are  unable  to  contribute 
toward  the  public  charges ; 

"Sub.  9  .  Property  owned  exclusively  by  the  State 
Agricultural  society,  or  any  county  or  district  agricul- 
tural society,  and  used  by  any  such  society  exclusively 
for  fair  purposes; 

"Sub.  10.  All  land  dedicated  to  the  public  and 
actually  used  as  a  park,  and  any  monument  ground  or 
any  armory  belonging  to  any  military  organization,  and 
not  used  for  gain  or  any  other  purposes." 

28.     Alpena   Water    Company  taxes  as  part  of  the  considera- 

v.   Alpena,  130  Mich.  518.     The  tion  of  furnishing  water  to  the 

city     had     agreed     to  hold     the  city.     Ludington  Water  Supply 

company     harmless     from     city  Co.  v.  Ludington,  119  Mich.  480. 


85  ASSESSMENT   AND  LOCUS  OF   PROPERTY. 

"Sub.  11.     All  real  estate  used  as  a  homestead  not 
exceeding  in  value  one  thousand  two  hundred  dollars 
of  any  soldier  or  sailor  of  the  Federal  government 
who  served  three  months  or  more  during  the  civil  war, 
and  all  real  estate  used  as  a  homestead  not  exceeding 
in  value  one   thousand  two  hundred   dollars  of  any 
widow  of  such   soldier  or  sailor."     This  exemption 
does  not  operate  to  relieve  from  the  payment  of  taxes 
any  of  the  above  mentioned  persons  who  are  the  own- 
ers of  taxable  property  of  greater  value  than  $1200.00. 
A  municipality  cannot,  for  a  consideration,  exempt  certain 
property  from  exemption  from  special  assessments.     The 
right  of  eminent  domain  cannot  be  bartered  away;  and  con- 
tracts to  do  so  by  the  legislature  or  any  agencies  of  the  state 
are  ineffectual  and  void  as  being  against  public  policy.    The 
right  to  levy  a  special  assessment  for  improvements  is  a 
public  right  and  duty,   the  performance  of  which   a   city 
council  cannot  divest  itself  of,  by  contract  or  otherwise. 

While  municipalities,  when  authorized  so  to  do,  have  the 
power  to  make  certain  contracts  with  respect  to  the  use  of 
the  streets,  the  general  rule  is  that  the  legislature  power 
vested  in  the  municipal  bodies  is  something  which  cannot  be 
bartered  away  in  such  manner  as  to  disable  them  from  the 
performance  of  their  legislative  functions.  These  bodies 
exercise  only  such  powers  as  are  delegated  to  them  by  the 
sovereign  legislative  body  of  the  state.  Such  powers,  how- 
ever, are  personal  to  the  municipalities  themselves,  and  being 
conferred  for  the  benefit  of  the  whole  people,  in  the  absence 
of  authority  to  that  effect,  cannot  be  bestowed  by  contract  or 
otherwise  upon  individuals  or  corporations  in  such  manner 
as  to  be  beyond  revocation.  Therefore,  an  agreement  to 
exempt  property  fronting  upon  a  certain  street  from  all 


§  57  THE  LAW  OF  TAXATION  86 

special  improvement  tax  in  consideration  of  a  dedication  of 
the  street  to  the  city  is  void29.  A  distinction,  however,  is 
made  between  an  agreement  to  except  property  from  an 
assessment  for  a  public  improvement,  as  highway,  and  an 
agreement  to  exempt  property  from  an  assessment  for  a 
quasi-public  improvement,  as  for  a  sewer.  In  the  latter  case, 
for  a  valuable  and  bona  fide  consideration,  the  municipality 
may  agree  to  exempt  certain  property  from  an  assessment 
for  the  construction  of  a  certain  sewer30. 

Where  a  charter  exempts  the  farming  lands  within  the 
corporate  limits  of  a  city  from  taxation  for  fire  department 
purposes,  it  does  not  exempt  such  farm  land  from  a  tax  for 
water  works  purposes,  although  one  of  the  reasons  for  main- 
taining the  water  works  is  for  fire  protection.  In  such  a  case, 
the  city  as  owner  of  the  water  works,  should  treat  the  fire 
department  as  a  customer,  and  adjust  with  such  property 
owners  upon  a  fair  basis31. 

A  plank  road  company,  paying  an  annual  income  tax,  is 
exempt  from  general  taxation;  and  property  used  by  the 
company,  though  outside  of  the  right  of  way,  as  a  toll  house, 
is  nqt  subject  to  general  taxes32. 

C.  L.  Chap.  206,  in  exempting  building  and  loan  asso- 
ciations from  taxation  is  constitutional33. 

Sub.  5 :  Churches  and  church  property  is  exempt  from 
general  taxation,  but  not  from  special  assessments  for  public 
improvements34. 


29.  Baldwin    v.    Hastings,   83  32.     Leggett    v.    Detroit,    137 
Mich.   639,  645;    Miller  v.   Kala-  Mich.   247;   Wabash  Ry.  v.   De- 
mazoo,  140   Mich.  49.  fiance,  167  U.  S.  100. 

30.  Plank    Road    Co.    v.    De-  33.     Court    v.    Grand    Rapids, 
troit,    81    Mich.    562,    construing  115  Mich.  493. 

Laws  1848,  p.  110.  34.     Sub.       5.         Lefevre      v. 

31.  Nat.  Loan  &  Investment  Mayor,  etc.,  2  Mich.  586. 
Co.  v.  Detroit,  136  Mich.  451. 


ASSESSMENT  AND  LOCUS  OF  PROPERTY  §  58 

Exemptions  of  Public  Property. 

All  public  property  is  exempt  unless  otherwise  specially 
provided  by  statute,  therein  differing  from  all  other  property, 
which  is  not  exempt  except  by  special  legislative  authority35. 
Statutory  Provisions. 

C.  L.  '97,  §3830,  Tax  Law,  §7,  as  amended  afore- 
said, exempts  following  public  property : 

"1 .  All  public  property  belonging  to  the  United 
States. 

"2.  All  public  property  belonging  to  the  State  of 
Michigan,  except  licensed  homestead  lands,  part  paid 
lands  held  under  certificates,  and  lands  purchased  at  tax 
sales,  and  still  held  by  the  State. 

"3 .  Lands  owned  by  any  county,  township,  city, 
village  or  school  district  and  building  thereon,  used  for 
public  purposes." 

Where  the  United  States  acquired  lands  from  the  Indians 
under  a  treaty  provision  that  such  land  could  not  be  alienated 
without  the  consent  of  the  Secretary  of  the  Interior,  it  was 
held  that  a  sale  of  such  lands  for  taxes  would  be  a  violation 
of  the  treaty  rights,  and  a  sale  of  the  lands  for  taxes  was 
enjoined36.  The  University  of  Michigan  is  a  public  in- 
stitution belonging  to  the  state,  and  exempt  from  taxation37. 
The  attempt  of  the  legislature  to  subject  the  capital  building 
at  Lansing  to  taxation,  for  the  benefit  of  the  city  was  held 
unconstitutional  because  the  object  of  the  bill  was  not 


35.  An  implied  exemption  351.  See  §435,  post, 
exists  in  relation  to  all  public  36.  Sub.  1:  Auditor  General 
property,  from  all  kinds  of  v.  Williams,  94  Mich.  180;  Kan- 
taxes;  and  only  such  taxes  can  sas  Indians,  5  Wall.  737;  Wor- 
be  assessed  thereon  as  is  ex-  cester  v.  Georgia,  6  Peters,  582. 
pressly  provided  by  statute.  37.  Sub.  2:  Auditor  General 
Big  Rapids  v.  Sup'rs,  99  Mich.  v.  Regents,  83  Mich.  460. 


§  58  THE  LAW  OF  TAXATION  88 

expressed  in  its  title38.  The  possession  of  state  property  by 
state  officers,  is  the  possession  of  the  state39.  Property  owned 
by  the  county  is  not  liable  to  taxation  for  public  improve- 
ments, or  for  any  other  taxes,  unless  it  is  so  expressly  pro- 
vided by  statute40.  It  is  competent  fo(r  the  legislature  to 
exempt  property  of  a  municipal  board  from  taxation,  as 
property  of  a  fire  department,  although  such  property  may 
be  rented  to  private  persons41.  Where  a  public  corporation, 
as  a  school  board,  purchases  private  property  upon  which 
there  are  taxes  due,  it  must  pay  such  taxes ;  such  tax  becomes 
due  after  the  final  action  of  the  board  of  review.  The  fact 
that  such  premises  subsequently  become  exempt  from  tax- 
ation does  not  relate  back  to  the  taxes  due  before  such 
exemption  took  effect42. 

A  township  cannot  claim  that  an  act  exempting  it  from 
taxation  for  county  roads  is  a  contract  which  the  repeal  of 
the  statute  will  leave  in  force.  The  township  is  a  municipal 
corporation  and  the  creature  of  the  legislature.  It  does  not 
stand  in  a  position  to  claim  the  benefit  of  the  constitutional 
provision  regarding  the  impairment  of  contracts,  since  its 
existence  may  be  wiped  out  at  the  will  of  the  legislature.  A 
township  is  but  an  auxiliary  of  the  state  in  the  important 
business  of  municipal  rule,  and  cannot  have  the  least  pre- 
tension to  sustain  its  privileges  or  its  existence  upon  any 
thing  like  a  contract  between  it  and  the  state,  because  there 

38.  Lansing      v.      Board      of  45    Conn.     462;     Polk     Savings 
State    Auditors,    111    Mich.    327,  Bank  v.  Iowa,  69  la.  29. 
construing  Local   Act  No.  5  of          41.     Board     of    Water     Corn- 
Public  Acts  of  1893.  missioners    v.    Auditor    General, 

39.  Mich.      State      Bank      v.  115    Mich.    546,   construing   Act 
Hastings,  Walkers   Ch.  9.  No.  90,  of  Public  Acts  of  1853, 

40.  Big  Rapids  v.   Sup'rs,  99  as  amended. 

Mich.    351;    Worcester    Co.    v.          42.     Iron  Mountain  School  v. 
Worcester.       116      Mass.      193;       O'Connor,  143   Mich.  35. 
Hartford  v.  West  Middle  Dist., 


ASSESSMENT  AND  LOCUS  OF  PROPERTY  §  59 

is  not,  and  cannot  be,  any  reciprocity  of  stipulation,  and 
their  objects  and  duties  are  utterly  incompatible  with  every 
thing  in  the  nature  of  compact48. 

i59.     Exemptions.     Educational  Institutions. 

Real  estate  owned  and  occupied  by  literary,  benevolent, 
charitable,  educational  and  scientific  institutions,  incorpor- 
ated under  the  laws  of  this  state,  with  the  buildings  and  other 
property  thereon,  while  so  occupied  solely  for  the  purposes 
for  which  they  are  incorporated,  are  exempt.  Such  exemp- 
tion, however,  does  not  apply  to  fraternal  or  secret  societies, 
excepting  that  the  charitable  houses  of  such  societies  are 
exempt44. 

Statutory  Provisions. 

C.  L.  '97,  §3830,  Sub.  4,  Tax  Law,  §7,  Sub.  4,  as 
amended  aforesaid,  provides 

"Such  real  estate  as  shall  be  owned  and  occupied  by 

library,  benevolent,  charitable,  educational  and  scientific 

institutions,  incorporated  under  the  laws  of  this  state, 

with  the  buildings  and  other  property  thereon,  while 

occupied  by  them  solely  for  the  purposes  for  which  they 

were  incorporated :    Provided,  That  such  exemptions 

shall  not  apply  to  'fraternal  or  secret  societies,  but  all 

charitable  homes  of  such  societies  shall  be  exempt." 

The  only  condition  imposed  on  the  exemption  is  that  it  be 

occupied  for  the  purposes  of  its  incorporation,  and  that  the 

society  be  incorporated  under  the  laws  of  this  state45.     To 

43.  Saginaw    Board   v.    Hub-  v.  Mayor,  3  Mich.  172,  it  is  held 
ingcr,  137  Mich.  72.  77.  that  where  part  of  the  premises 

44.  Sub.  4  of  83830.  are     used     for     purposes     not 

45.  Detroit    Home    and    Day  exempt,     the     entire     property 
School  v.  Detroit,  76  Mich.  521.  should  be  assessed  at  the  value 
In    Detroit    Young    Men's    So.  of   the    parts    so   used    for   pur- 


§  60  THE  LAW  OF  TAXATION  90 

subject  property  of  such  institutions  to  exemption,  they  must 
be  organized  chiefly,  if  not  solely,  for  one  of  these  objects. 
It  is  not  sufficient  that  one  of  direct,  or  indirect,  objects  is 
benevolence46.  A  corporation  incorporated  under  Chap.  224 
of  C.  L.  1897,  is  entitled  to  exemptions.  The  fact  that  most 
of  the  patients  pay  something,  but  the  total  income  does  not 
meet  expenses,  does  not  destroy  the  charitable  nature  of  the 
institution.  The  fact  that  non-exempt  property  is  included 
with  the  exempt,  on  the  rolls,  does  not  destroy  the  nature  of 
the  exempt  property47.  This  exemption  from  taxes  does  not 
apply  to  taxes  incurred  before  the  exemption  became 
effective48. 

§60.     Exemptions.     Railroad  Property. 

All  railroad  property  is  used  for  railroad  purposes,  and 
other  property  of  corporations  paying  specific  taxes,  are 
exempt  from  general  taxation.  But  this  exemption  does  not 
apply  to  land  not  adjoining  a  railroad  track,  nor  to  special 
assessments  in  cities  or  villages.  The  use  of  a  portion  of  the 
right  of  way  by  third  parties,  as  a  storing  ground,  no  rent 
being  paid  therefor,  will  not  destroy  the  exemption  where 
such  use  is  fqr  convenience  in  shipping49. 

poses  not  exempt.  In  Sisters  maintained  free  public  reading 
of  Charity  v.  Detroit,  9  Mich.  rooms,  but  leased  the  premises 
94.  a  church  leased  certain  lands  to  a  social  club  who  were  to 
to  the  Sisters,  who  occupied  it  maintain  the  rooms.  A  part  of 
for  a  charitable  purpose.  By  the  building  was  rented  to  a 
a  divided  court  it  was  held  military  organization.  Held, 
exempt.  that  the  reading  rooms  were 
46.  Attorney  General  v.  not  occupied  solely  for  the  pur- 
Common  Council,  113  Mich.  poses  of  the  incorporation,  and 
388.  In  this  case  it  is  held  that  were  not  exempt  from  taxation, 
the  Masonic  Temple  Ass'n  of  47.  Battle  Creek  Sanitarium 
Detroit  is  not  exempt,  and  that  etc.  v.  Battle  Creek,  138  Mich, 
the  Harmonic  Society  is  not  676. 

exempt,  under  H.  S.  §4471,  C.  L.  48.     Iron  Mountain  School  v. 

'97,  §8257.    In  Auditor  General  v.  O'Connor,   143   Mich.   35. 

Women's      Temperance      Ass'n,  49.     Auditor   General  v.   Flint 

119    Mich.    430,    the    defendants  etc.  R.  Co..  114  Mich.  682. 


91  ASSESSMENT  AND  LOCUS  OF  PROPERTY  ?  «'»0 

Statutory  Provision. 

,C.  L.  '97,  §3830,  Sub.  8,  Tax  Law,  §7,  Sub.  8,  as 
amended  aforesaid,  provides: 

"8 .  The  real  property  of  corporations  exempt  under 
the  laws  of  this  state,  by  reason  of  paying  specific  taxes 
in  lieu  of  all  other  taxes  for  the  support  of  the  state: 
Provided,  The  track,  right  of  way,  depot  ground  and 
buildings,  machine  shops,  rolling  stock,  and  all  other 
property  necessarily  used  in  operating  any  railroad  in 
this  state  belonging  to  any  railroad  company,  shall 
henceforth  remain  exempt  from  taxation  for  any  pur- 
pose, except  that  the  same  shall  be  subject  to  special 
assessments,  for  local  improvements  in  cities  and 
villages,  and  all  lands  owned  or  claimed  by  any  such 
railroad  company  not  adjoining  the  track  of  said  com- 
pany, shall  be  subject  to  all  taxes." 

A  grain  elevator,  used  as  a  warehouse  in  connection  with 
the  company's  business  as  a  common  carrier,  is  exempt50. 
When,  however,  the  'company  allows  the  premises  to  be  used 
by  persons  who,  in  addition  to  shipping  therefrom  or  receiv- 
ing freight  thereat,  are  buying  wheat,  or  selling  coal  or 
wood  therefrom,  they  are  not  exempt.  When,  by  the  con- 
sent of  the  company,  its  premises  are  exclusively  devoted 
to  a  business  in  which  it  could  not  engage, — a  business 
foreign  to  the  purpose  of  its  organization, — such  land  cannot 
be  considered  as  occupied  by,  or  necessary,  or  in  use  in  the 
operation  of  the  road,  even  though  the  occupiers  do  receive 
or  ship  freight  from  the  premises.  There  is  a  distinction 
between  elevators  erected  solely  for  the  purpose  of  facilitat- 
ing loading  and  unloading  of  cars,  of  grain  carried  by  rail- 
so.  Detroit  Union  Depot  Co.  Wis.  188;  Milwaukee  etc.  R.  Co. 
v  Detroit.  68  Mich.  347;  Chi-  v.  Milwaukee,  34  Wis.  271. 
cago  etc.  R.  Co.  v.  Bayfield,  87 


§  61  THE  LAW  OF  TAXATION  92 

road  companies,  and  land  used  exclusively  by  private  in- 
dividuals for  the  purpose  of  conducting  coal  and  wood  yards. 
It  is  immaterial  whether  or  not  the  company  erects  the 
buildings;  the  criterion  is  whether  or  not  they  are  used  for 
a  purpose  and  in  a  manner  authorized  by  the  charter  of  the 
corporation51.  This  exemption  does  not  apply  to  lands 
acquired  for  future  use,  until  they  are  actually  used  for 
railroad  purposes52.  Neither  does  it  apply  to  a  tax  upon 
dogs  owned  by  the  company53. 

1 81.     Personal  Property. 

As  heretofore  pointed  out,  an  interest  in  primary  .school, 
or  swamp  land,  is  personality.  An  interest  in  growing 
timber  is  an  interest  in  real  estate  and  should  be  taxed  to  the 
owner  of  the  soil54.  Prior  to  the  passage  of  Act  206  of  the 
Public  Acts  o;f  1893,  water  pipes  assessed  as  personal  prop- 
erty in  a  precinct  where  the  company  had  no  abiding  place, 
was  illegal.  Now,  by  this  statute,  they  are  assessed  as 
personality55.  A  land  contract  is  assessable  as  personal 
property  when  the  vendee  contracts  to  pay  the  taxes  on  the 
realty56.  An  agreement  to  purchase  all  of  the  timber  manu- 

51.  Grand  Rapids  etc.  R.  Co.  Minn.    112;    Republican    Valley 
v.  Grand  Rapids,  137  Mich.  587,  etc.    R.    Co.    v.    Chase    Co.,    33 
where    wood    and    coal     yards  Neb.       759.       In    Detroit     Plank 
were       located       on       railroad  Road    Co.   v.    Detroit,   81    Mich, 
grounds;     State  v.     Newark,     2  562,  it  is  held  that  a  house  for 
Deutcher,    N.    J.    519,    where    a  the   toll   keeper,   outside   of  the 
lumber    yard    was    on    railroad  right  ot  way  is  exempt, 
grounds;      Cook     y.      State,      4  53.     Hendrie    v.    Kalthoff,    48 
Vroom,  474,  involving  the  taxa-  Mich.  306. 

tion  of  a  coal  yard;  Railway  Co.  See       Robertson       v.       Land 

v.      Milwaukee,      34     Wis.      271,  Com'r,    44    Mich.    274;    Auditor 

pointing    out    the    distinction    be-  General  v.  Sage   Land  Co.,  129 

tween  an  elevator  run  to  facili-  Mich.   182. 

tate  the  carriage   of  grain,  and  54.     Fletcher  v.  Alcona  Twp., 

one    to    be    used    as    a   public  72  Mich.  18. 

warehouse    for  the    storage    of  55.     Grand    Haven    v.    Water 

grain.  Co.,   119   Mich.    652. 

52.  Auditor  General  v.   Flint  56.     Marquette  v.  Mich.  Land 
&  P.  M.  R.  Co.,  114  Mich.  682;  Co.,  132  Mich.  130. 

St.     Paul     v.     Railway    Co.,    39 


'.'.I  ASSESSMENT  AND  LOCUS  OF  PROPERTY  ?  82 

factured  into  lumber  from  a  certain  description,  title  to 
remain  in  vendee  until  lumber  was  manufactured  and  paid 
for,  is  only  a  sale  of  the  lumber,  and  personality,  assessable, 
in  the  log  or  at  the  mill,  to  the  vendee67.  Engines  and 
machinery  in  a  power  house  are  real  property58.  When  a 
purchaser  'from  the  state  has  paid  the  full  purchase  price,  but 
neglected  to  obtain  his  patent,  and  has  permitted  his  interest 
to  be  assessed  as  real  estate,  mandamus  will  not  lie  to  compel 
the  auditor  general  to  cancel  the  sale  of  such  land  for  taxes 
on  the  ground  that  his  interest  was  personal  property89. 
There  is  no  personal  liability  when  the  tax  is  assessed  to  the 
wrong  one60. 

§62.     Personal  Property.     Vessels. 

In  general,  all  property  of  every  description  is  taxable. 
Often,  however,  owing  to  the  domicile  of  the  owner,  the 
right  of  the  state  to  levy  the  tax  comes  in  question.  A 
vessel,  enrolled  and  licensed  or  registered  under  the  United 
States  Navigation  Laws,  does  not,  by  engaging  in  business 
within  a  state,  become  subject  tq  its  taxing  power,  if  the 
owner  is  a  non-resident61. 

Statutory  Provision. 

C.  L.  '97,  §3831,  Sub.  4,  Taw  Law,  §8,  Sub.  4,  pro- 
vides that  all  ships,  boats  and  vessels  and  their  appur- 
tenances belonging  to  inhabitants  of  this  state,  whether 


57.  Gd.  Rapids  Bark  etc.  Co. 
v.   Inland  Twp..   136   Mich.   121. 

58.  Detroit     United     Ry.     v. 
State  Tax  Com'r,  136  Mich.  96. 

59.  Mackinon      v.       Auditor 
General.  130  Mien.  552. 

60.  Starr     v.     Shepard,     145 


Mich.  302. 

61.  Roberts  v.  Charlevoix, 
60  Mich.  197:  Hays  v.  Steam- 
ship Co.,  17  How.  596;  St.  Louis 
v.  Ferrv  Co..  11  Wall.  423; 
Morgan  v.  Parham,  16  Wall. 
471. 


§  63  THE  LAW  OF  TAXATION  94 

at  home  or  abroad,  shall  be  deemed  personal  property 
for  the  purposes  of  taxation." 

Vessels  are  a  peculiar  class  of  property.  This  property, 
owned  in  another  state,  owes  no  duty  to  the  state  in  whose 
waters  it  may  happen  to  pass  over,  or  rest  in,  during  the 
close  of  navigation,  whereby  the  state  may  seize  upon  a 
portion  of  the  boats  property  and  use  it  to  discharge  the 
burdens  of  the  state.  For  certain  purposes,  it  is  true,  the 
boats  while  lying  in  the  harbor  or  riding  upo,n  the  waters  of 
the  lake,  are  within  the  jurisdiction  of  the  state.  The  free 
use  of  those  waters,  however,  is  secured  to  the  owner  of  the 
vessel  by  the  constitution  and  laws  of  the  land62.  The  statute 
(C.  L.  §3834),  which  provides  that  the  personal  property  of 
corporations  shall  be  assessed  at  the  place  where  they  tran- 
sact their  principal  business,  is  constitutional,  but  a  proviso 
that  maritime  companies  shall  be  assessed  at  the  place  named 
as  the  office  in  their  articles  of  incorporation  is  uncon- 
stitutional, since  such  a  law  favors  one  class  and  practically 
destroys  the  uniformity  of  taxation.  Such  a  statute  would 
allow  this  class  of  corporations  to  select  their  situs  of 
taxation,  irrespective  of  where  their  property  was  situate63. 

§63.     Personal  Property.     Chose s  in  Action. 

Credits  and  choses  in  action  can  be  taxed  only  at  the 
domicile  of  the  owner.  Where  such  owner  is  a  non-resident 
of  the  state,  such  evidence  of  sums  owing  to  him  cannot  be 

62.  Graham      v.     St.     Joseph  assessing    office     without   juris- 
Twp.,   67   Mich.   652,   656.  diction,   the   owner   is   not   estop- 

63.  Teagan       Transportation  ped  from  contesting  the  tax  be- 
Co.  v.   Board  of  Assessors,  139  cause      he      waited      until      suit 
Mich.    1;    Detroit    v.    Mackinaw  brought.     Portsmouth     Twp.    v. 
Transportation    Co.,    140    Mich.  Cranage     Steamship      Co.,     148 
174.      In    such    a   case,   the   law  Mich.  230. 

being   unconstitutional    and    the 


95 


ASSESSMENT  AND  LOCUS  OF  PROPERTY 


taxed  here  although  the  papers  affording  such  evidence  of 
indebtedness  are  within  the  hands  of  an  agent  in  this  state84. 

Statutory  Provisions. 

C.  L.  '97,  §3831,  Sub.  6,  Tax  Law,  §8,  Sub.6,  pro- 
vides that  all  credits  of  every  kind  belonging  to  in- 
habitants of  this  state,  over  and  above  the  amounts 
respectively  owed  by  them  whether  such  indebtedness 
is  due  from  individuals  or  from  corporations,  public  or 
private,  and  whether  such  debtors  reside  within  or 
without  the  state." 

C.  L.  '97,  §3836,  Tax  Law,  §13,  provides  that  all 
personal  property  unless  otherwise  specified,  shall  be 
assessed  to  the  owner  in  the  township  of  which  he  is  an 
inhabitant  on  the  second  Monday  of  April. 

C.  L.  '97,  §3837,  Tax  Law,  §14,  provides  eight 
excepted  cases : 

1st.  All  goods  and  chattels  in  a  store,  mill,  dock- 
yard, piling  ground,  place  of  sale,  shop,  office,  mine, 
farm,  warehouse,  shall  be  assessed  where  situate. 

2nd.  All  animals  kept  throughout  the  year  at  any 
place  shall  be  assessed  where  kept. 

4th.  Personal  property  of  those  under  guardianship 
shall  be  assessed  to  the  guardian,  where  he  resides. 

5th.  Personal  property  of  estates  shall  be  assessed 
to  the  administrator  or  executor  in  the  place  where  his 
decedent  resided,  unless  he  was  a  non-resident  of  the 
state,  in  which  case  it  shall  be  assessed  in  the  township 
where  situated. 

6th.      Personal    property   under   the    control   of   a 


64.     Baars    v.    Grand    Rapids, 
129   Mich.   572;    Howell   Village 


v.    Gordon.    127    Mich.    553;    In 
re  Stanton   Est,  142  Mich.  491. 


§  64  THE  LAW  OF  TAXATION  96 

trustee  or  agent  shall  be  assessed  where  he  resides  unless 

otherwise  provided. 

7th.     Buildings,  etc.,  upon  lands  of  the  state,  or  of 

the  United  States,  shall  be  deemed  personal  property 

and  assessed  where  situate. 

8th.    Personal  property  of  non-residents  of  the  state, 

and  all  forest  products  shall  be  assessed  where  situated 

o.n  the  second  day  of  April. 

The  owner  is  permitted  to  deduct  from  these  credits  his 
debts  that  are  due  or  to  come  due.  Rent  for  premises,  how- 
ever, coming  due  in  the  future  for  'future  occupancy  of  the 
premises,  is  not  a  debt  contemplated  by  the  statute65.  Such 
credits  and  securities  should  be  assessed  at  their  true  cash 
value66.  Where  the  vendee  in  a  land  contract  has  agreed  to 
pay  the  taxes  assessed  against  the  land,  such  contract  is  tax- 
able to  the  vendor  as  personal  property67. 

§64.     Mortgages. 

Such  securities  have  generally  been  treated  as  personal 
property  both  for  commercial  purposes  and  for  taxation. 
While  it  is  true  that  a  mortgage  conveys  only  a  qualified 
interest  in  land,  it  yet  so  far  partakes  of  the  character  of 
real  property  as  to  require  administration  in  the  state  of  its 
location.  It  is  competent  for  the  legislature  to  select  as  the 
stilts  of  the  taxation  either  the  political  division  where  the 
owner  resides,  or  that  in  which  the  mortgaged  premises  are 
situated88. 

65.  Beecher       v.        Common  Banks     will     be     found     under 
Council,  110  Mich.  456.  those  heads. 

66.  Attorney        General       v.  68.     Common        Council        v. 
Sup'rs,  71  Mich.  16.  Assessors,     91     Mich.     78,     92; 

67.  Marquette  v.  Mich.  Land  Mumford  v.   Sewall,   11   Or.  70; 
Co.,  132  Mich.  130.  State  v.   Runyon,  41  N.  J.   Law 

The    treatment    of   mortgages      105;     Ins.     Co.     v.    Com'r,     137 
for  taxation,  which  are  held  by      Mass.  81. 
Insurance         Companies         and 


ASSE>>Mi,M    AND  LOCUS  OF  PROPERTY 


It  is  competent,  also,  for  the  legislature  to  provide  for  a 
tax  upon  the  mortgage  interest  in  the  land,  rather  than  upon 
the  mortgage  itself;  and  such  tax  may  be  made  a  lien  upon 
the  mortgaged  premises,  which  the  owner  of  the  land,  as 
well  as  the  mortgagee,  may  be  compelled  to  pay  to  save  his 
land  from  sale.  For  purposes  of  taxation  the  mortgage 
interest  may  be  treated  as  real  estate69.  Mortgages  and 
land  contracts  of  non-resident  are  subject  to  the  inheritance 
tax  here70. 

§65.     Stock  of  Corporations. 

The  assessment  of  bank  stock  has  heretofore  been  dis- 
cussed71. 

Statutory  Provision. 

C.  L.  '97  §3831,  Sub.  7,  Tax  Law,  §8,  Sub.  7,  pro- 
vides that  all  shares  in  corporations  organized  under  the 
laws  of  this  state,  when  the  property  of  such  corpor- 
ations is  not  exempt,  or  is  not  taxable  to  itself ;  or  when 
the  personal  property  is  not  taxed." 

Stock  of  domestic  corporations  having  their  corporate 
property  assessed  in  the  state,  is  not  assessable  by  statute. 
The  same  rule  applies  to  foreign  corporations72.  Shares  in 
foreign  corporations  wnqse  corporate  property  is  not  taxed 
in  this  state  but  is  taxed  in  another  state,  are  assessable  at 
the  domicile  of  the  owner. 


69.  Common  Council  v. 
Assessors,  91  Mich.  78,  con- 
struing Act  200  of  Public  Acts 
of  1891.  In  State  Tax  on  For- 
eign Bonds,  15  Wall.  300,  it  is 
heKi  that  bonds  held  by  non- 
residents of  the  state  are  not 
taxable;  but  this  case  is  dis- 
tinguished in  that  it  was  an 
attempt  to  tax  the  bonds,  while 
under  the  above  Act  the  at- 
tempt is  not  to  tax  the  mort- 
gage, but  the  mortgage  interest 

(7) 


in  the  land.  Latham  v.  Ass'rs, 
91  Mhh.  509;  Savings  Bank  v. 
Ass'rs,  91  Mich.  514;  Robinson 
v.  Ass'rs,  91  Mich.  516;  Stand- 
ard Life  Ins.  Co.  v.  Ass'rs,  91 
Mich.  517. 

70.  In    re    Stanton    Est.,    142 
Mich.  491. 

71.  See   §866,  67,  post. 

72.  Graham     v.     St.     Joseph 
Twp..   67   Mich.   652;    Bacon    v. 
Com'rs.  126  Mich.  22,  25;  Stroh 
v.  Detroit,  131   Mich.  109. 


§  66  THE  LAW  OF  TAXATION  98 

The  constitutional  power  to  tax  shares  of  stock  owned  by 
citizens  of  one  state  does  nqt  depend  on  whether  the  capital 
of  the  corporation  is  or  is  not  taxed  in  the  state  where  the 
corporation  was  created.  The  power  is  the  same  whether 
the  capital  of  the  corporation  is  there  taxed  or  not;  other- 
wise, the  power  of  taxation  conferred  by  the  constitution 
would  be  made  to  depend  upon  the  operation  of  laws  of  a 
foreign  jurisdiction73.  Such  assessment  is  not  in  contra- 
vention of  §1  of  Art.  4  of  the  Constitution  of  the  United 
States,  which  provides  that  "full  faith  and  credit  shall  be 
given  in  each  state  to  the  public  acts,  records  and  judicial 
proceedings  of  every  other  state."  While  the  constitution 
might  have  been  so  framed  as  to  afford  relief  against  such 
a  disability,  "it  has  not  been,  and  the  states  are  left  free  to 
extend  the  comity  which  is  sought,  or  not,  as  they  please. 
No  state  can  legislate  except  with  reference  to  its  own  juris- 
diction. One  state  cannot  exempt  property  in  another  state 
from  taxation74.  Stock  of  a  foreign  corporation,  owned  by 
a  non-resident  but  in  the  hands  of  an  agent  here,  is  not 
assessable75. 

§66.     Savings  Banks. 

A  corporation  is  always,  so  far  as  its  property  is  .con- 
cerned, a  mere  trustee  for  its  stockholders  whose  interests 
are  in  its  corporate  charge.  The  conditions  imposed  by 
congress  on  the  taxation  of  property  in  national  banks  made 
it  desirable  for  the  state  to  make  bank  taxation  as  nearly 

73.     C.    L.    '97,    §3831,    Sub.    9,  Bander,      36    Ohio     St.    28,     36; 

provides     that     "all     shares     in  Dwight  v.  Boston,  12  Allen  316. 

foreign  corporations,  except  na-  74.     Bonaparte      Tax      Court, 

tional  banks,  owned  by  citizens  104  U.  S.  594;  Bacon  v.  Com'rs, 

of   this    state,   shall   be   deemed  126  Mich.  22,  29. 

personal   property  for  purposes  75.     In    re    Stanton    Est.,    142 

of    taxation;    Bacon    v.    Com'rs,  Mich.  491. 
126     Mich.    22,   30;     Bradley    v. 


ASSESSMENT  AND  LOCUS  OF  PKol'KIM  Y 


uniform  as  possible,  the  tax  laws  of  1882  and  1885  have 
provided  that,  except  as  to  real  estate,  all  such  taxation  shall 
be  against  the  shareholders,  who  are  the  equitable  and 
beneficial  owners  of  all  the  assets,  although  in  law  the  cro- 
poration  is  a  distinct  person.  It  can  make  no  great  differ- 
ence to  the  state  whether  the  cestuis  quc  trust  pay  their 
taxes  directly  in  person,  or  have  them  paid  by  their  trustee 
out  of  the  trust  funds.  The  real  estate  should  be  assessed 
to  the  bank,  and  the  value  thereof  deducted  from  the  other 
assets,  which  balance  will  be  assessed  against  the  stock76. 

$67.     Banks. 

Under  the  laws  of  1889,  bank  stock  may  be  assessed  to 
the  owner  where  he  lives,  notwithstanding  it  was  not  re- 
ported by  the  clerk.  Under  this  law,  bank  stock  owned  by  a 
person  residing  in  the  county  where  the  bank  is  located  shall 
be  assessed  in  the  township  where  the  owner  resides.  It  is 
made  the  duty  of  the  cashier  of  the  bank  to  report  such  stock 
to  the  proper  supervisor77. 


76.  C.  L.  '97,  §3831,  sub.  8. 
Lenawee  Savings  Bank  v. 
Adrian,  66  Mich.  273.  In  Coun- 
cil v.  Detroit,  91  Mich.  78,  98, 
under  Act  200  of  Public  Acts 
Of  1891,  it  is  held  constitutional 
to  provide  for  treating  mort- 
gages as  real  estate.  The  value 
of  the  mortgages  should  be  de- 
ducted from  the  capital  stock. 
This  holding  is  approved  in 
Latham  v.  Ass'rs,  91  Mich.  509 
and  in  three  other  cases  heard 
at  the  same  time. 

In  Standard  Life  Ins.  Co.  v. 
Board  of  Ass'rs,  95  Mich.  466, 
it  is  held  that  the  tax  is  not 
uniform  unless  so  deducted.  In 
Detroit  River  Savings  Bank  v. 
Detroit,  114  Mich.  81,  the 
assessors  refused  to  assess  real 
mortgages  and  deducted 


same  from  the  capital  stock, 
following  Act  26  of  Public  Acts 
of  1893,  declared  unconstitu- 
tional in  95  Mich.  466.  The 
bank  did  not  appeal  from  such 
action  to  the  council,  and  was 
held  estopped  from  bringing 
suit. 

77.  Crittenden  v.  Mt.  Clem- 
ens, 86  Mich.  221;  in  this  case 
it  was  held  immaterial  that  the 
cashier  reported  the  stock  to 
the  wrong  supervisor,  so  long 
as  it  was  assessed  in  the  right 
locality.  The  provisions  of  this 
statute  are  mandatory  as  to  the 
time,  place,  and  manner  of 
assessment.  In  Muskegon  v. 
Lange,  104  Mich.  19.  it  is  held 
that  the  duty  of  the  cashier, 
under  this  act.  is  official  and 
not  personal. 


§§  6$,  69  THE  LAW   OF  TAXATION  100 

Statutory  Provision. 

C.  L.  '97,  §3831,  Sub.  8,  Tax  Law,  Sub.  8,  provides 
that  all  shares  in  banks  organized  under  the  laws  of 
this  state  or  of  the  United  States,  at  their  cash  value, 
after  deducting  the  assessed  value  of  real  property 
owned  by  and  assessed  to  such  banks." 

§68.     Collection  of  Tax  on  Bank  Stock. 

The  duty  of  the  cashier  of  a  bank  being  official  and  not 
personal,  he  cannot  be  compelled  by  mandamus  to,  pay  the 
tax  assessed  against  the  bank  stock78.  The  bank  itself,  not 
its  cashier,  will  be  liable  in  an  action  at  law  for  such  taxes 
as  the  cashier  ought  to  pay  in  this  respect.  Taxes  are  not 
debts  in  the  ordinary  acceptation  of  the  term,  and  statutory 
measures  are  to  be  resorted  to  for  their  collection.  Gen- 
erally, no  others  are  admissible.  The  remedy  of  suit  may  be 
given  either  directly  or  by  implication.  If  no  specific  remedy 
is  expressly  given,  or  only  an  imperfect  or  an  inadequate 
one,  the  presumption  that  a  remedy  by  suit  was  intended  is 
but  reasonable.  Such  suits  would  take  the  ordinary  suits 
prescribed  by  law  for  the  collection  of  money  demands, 
except  as  the  statute  may  have  otherwise  provided79. 

§69.     National  Banks. 

The  Act  of  Congress  under  which  National  Banks  are 
organized  allow  the  taxation  by  the  state  of  the  shares  of 

78.  Enke  v.  Lange,  90  Mich.  property  on  Dec.  1st.    Held,  that 
592;     Muskegon   v.     Lange,    104  this  lien  did  not  attach  on  sales 
Mich.    19;    Enke    v.    Lange,    104  made  prior  to  Dec.  1st,  and  that 
Mich.  26.  the  bank  would  not  be  liable  for 

79.  Bank  v.   Douglass   Co.,  3  the  tax  on  stock  so  sold,  follow- 
Dill    330;    Enke    v.    Lange,    104  ing  Boston  v.  Beal,  51  Fed.  306, 
Mich.  26,  27;  St.  Johns  National  and    New    Orleans    v.    Huston, 
Bank     v.     Bingham     Twp.,    113  119    U.    S.   265,   because   it   was 
Mich.    203.    construing     §40     of  out  of  the  power  of  the  bank  to 
Act  206  of  Public  Acts  of  1893,  reimburse    itself.      See    Odlin    v. 
providing  that  all  personal  taxes  Woodruff,  22  L.  R.  A.  699. 
should  be  a  lein  on  the  personal 


101  ASSESSMENT  AND  LOCUS  OF  PROPERTY  jj   <<J 

stock  in  the  bank,  but  not  of  the  caiptal  stock  itself80.  Un- 
der the  National  Banking  Laws,  an  act  providing  for  the 
taxation  of  such  stock  where  the  bank  is  located  or  the  stock- 
holder resides,  is  valid.  Prior  to  1871,  the  stock  of  a  non- 
resident of  the  township  where  the  bank  was  located  could 
not  be  taxed  at  all.  Bank  stock  is  intangible  and  follows 
the  domicile  of  the  owner81.  This  stock  cannot  be  taxed  at 
a  greater  rate  than  is  assessed  upon  other  moneyed  capital 
in  the  hands  of  individual  citizens  of  each  state.  If  a 
deduction  for  debts  is  permitted,  such  debts  must  be  dis- 
closed to  the  assessing  officer82. 

§70.     Exemptions.     Copy  Rights,  Etc. 

The  constitution  requires  property  to  be  assessed  at  its 
true  cash  value.  This  means  not  only  what  may  be  put  to 
valuable  uses,  but  what  has  a  recognized  pecuniary  value 
inherent  in  itself,  and  not  enhanced-or  diminished  according 
to  the  person  who  owns  or  uses  it.  Abstract  books,  sur- 
veyors notes,  druggists  recipes,  copy-rights,  and  similarly 
classified  knowledge,  are  not  things  that  the  law  has  made 
subject  to  seizure  or  assessment.  All  civilized  governments 
respect  private  manuscripts  and  treat  them  as  not  partaking 
of  the  nature  of  property  open  to  ordinary  sale  and  dis- 
posal. The  possession  of  them  gives  no  right  in  the 
possessor  to  use  them  or  publish  them  unless  by  the 
acquiesence  of  the  originator.  While  it  has  often  happened 
that  trade  secrets  taken  down  in  writing  may  furnish  means 
of  acquiring  profit,  it  has  never  been  held  that  the  writings 

80.     Smith   v.    National   Bank,  Mich.  483. 

17    Mich.    479;     Van     Allen     v.  81.     Howell   v.   Cassopolis,  35 

Ass'rs,    3    Wall    573;    People   v.  Mich.  471. 

Com'rs.   4   Wall.   244;  Bradley  v.  82.    St.  Joseph  National  Bank 

People,  4  Wall.  459;   First  Na-  v.  St.  Joseph,  46  Mich.  526. 
tional     Bank    v.     Watkins,     21 


§  71  THE  LAW  OF  TAXATION  102 

themselves  were  subject  to  seizure  or  sale  without  the  con- 
sent of  the  owner.  Such  property  does  not  come  within  the 
constitutional  description  of  property  subject  to  taxation83. 

§71.     Exemptions. 

Debts  as  an  off-set  to  credits84. 
Statutory  Provisions. 

C.  L.  '97,  §3832,  Tax  Law,  §9,  as  amended  by  Act 
No.  175  of  Laws  of  1909,  exempts  twelve  classes  of 
personal  property: 

First.  The  personal  property  of  benevolent,  charit- 
able educational  and  scientific  institutions,  incorporated 
under  the  laws  of  this  State,  excepting  of  secret  or 
fraternal  societies;  but  the  personal  property  of  all 
charitable  homes  of  such  societies  shall  be  exempt. 

Second.  The  personal  property  of  all  library  asso- 
ciations, circulating  libraries,  libraries  of  reference,  and 
reading  rooms  owned  or  supported  by  the  public,  and 
not  used  for  gain. 

Third  The  personal  property  of  all  Posts  of  the 
Grand  Army,  sons  of  veterans,  women's  relief  corps 
connected  therewith,  young  men's  christion  associations, 
women  Christian  temperance  union  associations,  young 
people's  Christian  unions,  and  other  similar  associations. 

Fourth.    Pensions  receivable  from  the  United  States. 

Fifth.     So  much  of  the  debts  due  or  to  become  due 

83.     Perry   v.    Big   Rapids,   67  594. 

Mich.     146,     148;     In     Dart     v.  84.     Sub.  5:    Debts,  to  be  de- 

Woodhouse,  40  Mich.  399,  it  is  ducted  from  credits  are  treated 

held  that  such  property  cannot  as  an  exemption  under  the  stat- 

be  levied  upon,  following    Stev-  ute.       In     Beecher     v.     Detroit 

ens   v.    Gladding,    17    How.   451;  Council,  110  Mich.  456,  rents  to 

Stephens  v.  Cady,  14  How.  531;  become   due   for   the   future   use 

Banker  v.  Caldwell.  3  Minn.  94;  of  the  premises   is   held   not  to 

Loomis    v.    Jackson,    130    Mich.  be  a  debt  that  can  be  deducted. 


103  ASSESSMENT  AND  LOCUS  OF  PROPERTY 

as  shall  equal  the  amount  of  bona  fide  and  unconditional 
debts  by  the  person  owning : 

Sixth.     The  property  of  Indians  who  are  not  citizens. 

Seventh.  The  library,  family  pictures,  school  books, 
one  sewing  machine  used  and  owned  by  each  individual 
or  family,  and  wearing  apparel  of  every  individual. 

Eighth.  Household  furniture,  provisions  and  fuel  to 
the  value  of  five  hundred  dollars  to  each  household: 
Provided,  no  person  paying  board  shall  be  deemed  a 
householder. 

Ninth.  The  working  tools  of  any  mechanic,  not  to 
exceed  in  value  the  sum  of  one  hundred  dollars. 

Tenth.  All  fire  engines  and  other  implements  used  in 
extinguishing  fires,  used  or  owned  by  any  organized  or 
independent  fire  company. 

Eleventh.  All  mules,  horses  and  cattle  not  over  one 
year  old,  all  sheep  and  swine  not  over  six  months  old, 
and  all  domesticated  birds. 

Twelfth.  Personal  property  owned  and  used  by  any 
householder,  in  connection  with  his  business  of  the 
value  of  two  hundred  dollars. 

Household  furniture  of  the  value  of  $500.0085,  the  work- 
ing tools  of  a  mechanic  of  the  value  of  $100,0088,  and 
articles  to  enable  a  householder  to  carry  on  his  trade, 
occupation  or  business  in  which  he  is  wholly  or  principally 
engaged,  are  exempt  from  taxation.  It  is  not  essential  that 
such  articles  be  absolutely  necessary  for  such  purpose.  'It  is 


85.     Sub.  8:    In  Kull  v.  Dunn,  Dunlap  v.  Edgerton,  30  Vt.  224. 

102    Mich.   581,   a   piano  is  held  86.     Sub.    9:      Similarly,     the 

subject    to    levy    on    execution,  tools   of   dentist   were   held   ex- 

under    a    similar    statute.     Tan-  empt    from    levy    in    Maxon    v. 

ner    v.    Billings,    18    Wis.    163;  Perrott,   17   Mich.   332. 


§71 


THE  LAW  OF  TAXATION 


104 


enough  that  they  are  suitable  and  actually  used  therefor87. 
A  library  of  any  description,  whether  law  or  otherwise,  is 
not  subject  to  taxation88. 

87.     Kenyon     v.     Baker,      16      46  Mich.  215. 

Mich.  373;  Stewart  v.  Welton,  88.  Paterson  v.  Grayling 
32  Mich.  59;  Stilson  v.  Gibbs,  Twp.,  125  Mich.  126. 


CHAPTER  V. 
LOCUS,  DESCRIPTION  AND  VALUATION. 

872.  Residence  of  a  Corporation. 

§73.  Residence  of  a  Taxpayer. 

574.  Partnership   Property. 

§75.  Personal   Property. 

§76.  Trustees  and  Agents. 

§77.  Personal  Property  of  Non-Residents. 

§78.  To  whom   Property  may  be  Assessed. 

§79.  Non-Resident  Owners  of  Real  Estate. 

§80.  Unoccupied  Property. 

§81.  Description  of  Real  Property. 

§82.  Abbreviations. 

§83.  Section  Lands. 

§84.  Plats. 

§85.  Contiguous  Parcels. 

§86.  Estoppel. 

§87.  Personal  Property,  Description. 

§88.  Tax   Statements. 

§89.  Valuation. 

§90.  Excessive   Valuation. 

§91.  Rebate  and  Refunding  of  Tax. 

§92.  Low  Valuation,  or  Omission  of  Valuation. 

§93.  Dollar  Marks. 

CROSS-REFERENCES. 

Assessment  District,  §§322,  344.  Assessment  of  Drains,  §283. 
Decree,  §391.  Description  in  Application  to  Probate  Court,  §263.  De- 
scription in  Deed,  §203.  Description  of  Lands  on  Drain,  §263. 
Description  in  Notice  of  Tax  Purchase,  §402.  Estoppel  in  Re  Descrip- 
tions, §86.  Description  in  Order  Appointing  Special  Commissioners, 
§268.  Description  in  Return  of  Special  Commissioners,  §271.  Pur- 
chaser's Right  to  Repayment  of  Tax,  §§171,  202,  203.  Tax  Statements, 
§88.  •  •  '  •  * 


§72.     Residence  of  a  Corporation. 

The  place  named  in  its  articles  of  incorporation  as  its 
principal  place  of  business  is  not  conclusive  upon  the  assess- 
ing officer.  He  may  show,  if  he  can,  that  the  main  office  is 
in  some  other  place1. 

1.    Detroit    Transportation    Co.      Teagan   Trans.   Co.   v.   Board   of 
v.    Assessors,   94    Mich.    382.      In       Assessors,  139  Mich.  1,  it  is  held 


§  72 


THE  LAW  OF  TAXATION 


106 


Statutory  Provision. 

C.  L.  '97,  §3834,  Tax  Law,  §11 :  Provides,  as  to 
place  of  assessment : 

"The  place  where  its  office  is  located  in  its  articles  of 
incorporation  shall  be  deemed  its  residence :  Provided, 
its  business  is  actually  transacted  at  such  office ;  but  if  it 
shall  establish  its  principal  office  in  any  other  place  than 
the  place  named  in  its  articles  of  incorporation,  then  the 
place  where  it  transacts  its  principal  business  shall  be 
deemed  its  residence  for  all  purposes  of  this  act.  If 
there  be  no  principal  office  in  this  State,  then  at  the 
place  in  ihis  State  where  such  corporation  or  agent 
transacts  business :  *  *  *." 

If  the   company   is  organized   for   the   purpose  of 

engaging  in  maritime  commerce  or  navigation,   then 

the  place  stated  in  the  articles  of  incorporation  shall  be 

deemed  its  residence.     See  §58,  supra,  as  to  vessels. 

A  corporation,  however,  has  a   right  to  reside  in  the 

country ;  and  where  its  principal  business  office  is  located,  its 

business  transacted,  and  meetings  of  its  officers  held,  there 

it  should  also  be  assessed2.     Where  the  testimony  is  un- 


that,  for  purposes  of  taxation,  the 
residence  of  the  corporation  is 
where  the  principal  business  is 
transacted,  and  not  at  the  office 
named  in  its  corporation  papers. 
See  §62  supra.  The  following 
cases,  under  a  slightly  different 
statute,  hold  that  the  place  of 
business,  as  stated  in  the  articles 
of  incorporation,  is  conclusive 
upon  the  assessing  officers,  Trans- 
portation Co.  v.  Scheu,  19  N.  Y. 
408;  Starch  Factory  v.  Dolloway; 
Steam  Boat  Co.  v.  Buffalo,  82  N. 
Y.  351 ;  Pelton  v.  Transportation 
Co.,  37  Ohio  St.  450. 


2.  Detroit  v.  Lothrop,  136 
Mich.  265.  In  Detroit,  Ypsilanti, 
etc.,  R.  Co.  v.  Detroit,  141  Mich. 
5,  the  company  had  offices  in  De- 
troit, through  which  all  business 
passed  before  it  was  entered  on 
the  books  at  Dearborn,  which  was 
the  place  of  business  stated  in 
the  articles  of  incorporation. 
Stockholders  and  directors'  meet- 
ings were  called  at  Dearborn,  but 
such  meetings  generally  ad- 
journed to  Detroit.  It  was  held, 
under  C.  L.  §3831,  Sub.  16,  that 
the  place  of  business  of  the  com- 
pany, for  purposes  of  taxation. 


107  LOCUS,  DESCRIPTION,  VALUATION  §  73 

disputed  in  this  respect,  the  court  should  direct  a  verdict3. 

§73.     Residence  of  a  Tax  Payer. 

The  bona  fide  residence  of  any  person  may  be  a  question 
of  fact,  not  dependent  solely  upon  the  alleged  intent  in  the 
mind  of  such  person.  A  person  who  removes  from  his 
usual  residence  for  a  few  months  during  the  assessing 
season,  for  the  purpose  of  escaping  taxation  in  a  particular 
district,  and  then  returns  after  the  assessment  is  made,  may 
still  be  assessed  in  his  first  or  original  place  of  residence4. 

Statutory  Provision. 

C.  L.  '97,  §3836,  provides :  "All  personal  property, 
except  as  herein  after  provided,  shall  be  assessed  to  the 
owner  in  the  township  in  which  he  is  an  inhabitant,  on 
the  second  Monday  in  April,  of  the  year  for  which 
assessment  is  made." 

The  word  "citizen,"  as  used  in  the  tax  laws,  is  synony- 
mous with  "inhabitant,"  or  "resident."  It  is  not  limited  to 
persons  who  are  citizens  in  a  political  sense6.  Where  a  per- 
son rents  his  premises,  reserving  a  room,  but  comes  back 
occasionally,  his  residence  is  a  question  of  fact  for  the  jury6. 
The  tax  becomes  a  charge  against  the  owner  of  the  prop- 


was  Detroit.     In  the  case  of  ves-  of    residence   was   determined   by 

sels,    the    property     is    assessable  a  jury;  also,  Beecher  v.  Detroit, 

where  located  when  such  place  is  114  Mich.  228.    In  Kalkaska  Twp. 

designated    as    the    residence    of  v.  Fletcher,  81  Mich.  446,  the  title 

the  corporation  in  the  articles  of  of   property   attached    is    held    to 

incorporation ,    Detroit   v.   Macki-  remain  in  the  owner,  not  in  the 

naw  Transportation  Co.,  140  Mich.  attaching  creditors. 
174.  5.    Bacon  v.  Commissioners,  126 

3.  Nester  v.  Baraga'Twp.,  133  Mich.  22,  29;  McKenzie  v.  Mur- 
Mich.  640.  phy,   24    Ark.    155,    159:    State    v. 

4.  Crittenden  v.  Mt.   Clemens,  Trustees,  11  Ohio,  24,  27. 

86  Mich.  221,  22fl.     In  Detroit  v.          8.    Ovid     Twp.    v.    Haire,    133 

Macier,  1 117    Mich.   76,   the   place  Mich.  353. 


§  74  THE  LAW  OF  TAXATION  .  108 

erty,  under  the  charter  of  Detroit,  on  April  1st;  and  a  per- 
son who  removes  from  the  city  on  April  2nd,  is  liable  for 
such  tax7. 

§74.     Partnership  Property. 

The  legislature  may  designate  where  personal  property 
shall  be  assessed,  whether  at  the  place  where  the  property 
may  be,  or  where  the  owner  resides.  C.  L.  §3835  provides 
that  a  copartnership  shall  be  treated  as  an  individual  but 
shall  be  assessed  in  the  firm  name.  A  copartnership  shall  be 
deemed  to  reside  in  the  township  where  its  business  is  prin- 
cipally carried  on,  and  each  partner  shall  be  liable  for  the 
whole  tax.  The  personal  property,  as  above  specified,  is  to 
be  assessed  as  in  the  case  of  an  individual  and  follows  the 
statute  in  that  regard8. 

Statutory  Provision. 

C.  L.  '97,  §3835,  Tax  Law,  §12:  'Tor  the  purpose 
of  assessing  property  and  collecting  taxes,  a  copartner- 
ship shall  be  treated  as  an  individual,  and  whenever  the 
name  of  the  owner  or  occupant  of  property  is  required 
to  be  entered  upon  the  assessment  roll,  if  such  property 
is  owned  or  occupied  by  a  copartnership,  the  firm  name 
shall  be  used.  A  copartnership  shall  be  deemed  to 
reside  in  the  township  where  its  business  is  principally 
carried  on.  Each  partner  shall  be  liable  for  the  whol** 
tax." 

The  real  property  of  a  copartnership  is  assessed  in  the 
district  where  it  is  situated9.     A  joint  assessment  of  the 

7.  Detroit      v.      Patten,      143  9.    Graham  v.  St.  Joseph  Twp., 
Mich.  243.  67  Mich.  652;  C.  L.  97,  §3326.    In 

8.  Blogett  v.   City   of   Mitske-  McCoy  v.  Anderson,  47  Mich.  502, 
gon,  60  Mich.  580.  a  stock  of  logs  and  lumber  stored 


10'J 


LOCUS,  DESCRIPTION,  VALUATION 


§75 


property  of  husband  and  wife  is  not  void,  though  they  own 
it  as  tenants  in  common.  Neither  can  object  to  being 
made  liable  for  the  whole  tax  where  they  did  not  appear 
before  the  board  of  review  and  disclose  their  true  interest10. 
§75.  Personal  Property. 

All  personal  property,  except  as  specially  provided 
otherwise,  (C.  L.  §3836),  is  required  to  be  assessed  in  the 
township  of  which  the  owner  is  an  inhabitant.  The 
exceptions  are  as  follows  : 

Sub.  1  provides  that  all  goods  and  chattels  shall  be 
assessed  where  located  if  the  owner  uses  any  store,  piling 
ground,  factory,  warehouse,  etc.,  or  place  for  the  sale  of  such 
goods  and  chattels,  in  connection  therewith,  or  has  them 
manufactured  by  contract11. 


at  a  mill  is  held  assessable  at  the 
main  office  of  the  firm.  (This  was 
prior  to  law  of  1882).  In  Will- 
iams  v.  Saginaw,  51  Mich.  120,  it 
is  held  that  the  personal  property 
of  a  firm  where  their  place  of 
business  is  should  there  be  as- 
sessed, though  the  members  of 
the  firm  may  not  reside  in  that 
assessing  district.  In  Babcock  v. 
Beaver  Creek  Twp.,  64  Mich.  601, 
it  is  held  that  the  personal  prop- 
erty of  a  firm  should  be  assessed 
in  the  home  township. 

10.  Detroit  v.  Jacobs,  145  Mich. 
395. 

11.  C.  L.  97,  §3837,  Sub.  1.     In 
Kalkaska    Twp.    v.    Fletcher,    81 
Mich.   446,   it  is  held   that  goods 
in  the  hands  of  a  sheriff,  stored 
in  a  building  awaiting  sale  upon 
an  execution,  or  in  possession  of 
an    attaching   creditor,    should    he 
assessed   to   the  owner   where   he 
lives ;    that    they    are    not    within 
the  exceptions  of  Sub.  1.     In  Ry- 
erson  v.  Muskegon,  57  Mich.  38.T. 
logs  were  held  taxable  where  the 
camp  was,  instead  of  at  the  loca- 


tion of  the  main  office,  there  hav- 
ing been  an  office,  store,  boarding 
house,  etc.,  at  the  camps.  In  Put- 
nam y.  Fife  Lake  Twp.,  45  Mich. 
125,  it  was  held  fliat  where  a 
stock  of  lumber  is  sold  at  the 
general  place  of  business,  but  is 
sawed  elsewhere  and  shipped,  i» 
should  be  assessed  at  the  genera! 
place  of  business.  (Tax  law  of 
1876.)  There  is  a  similar  ho'd- 
ing  in  Monroe  v.  Greenhoe,  54 
Mich.  9.  This  case  also  holds 
that  logs,  in  which  plaintiff  hid 
no  title  or  right  of  possession  un- 
til after  they  were  sawed,  should 
not  have  been  assessed  to  him. 
There  is  same  holding  in  Oster- 
hout  v.  Jones,  54  Mich.  229.  (Tax 
of  1882.)  In  Torrent  v.  Yager, 
52  Mich.  506,  it  is  held  that  logs 
at  a  saw  mill  where  they  were 
sawed  by  contract,  were  assess- 
able at  the  residence  of  the  own- 
er. (Tax  of  1882.  The  proviso 
of  the  present  law  as  to  hiring 
goods  manufactured  was  added  >n 
1884.)  In  Manistique  Lumber 
Co.  v.  Witter.  58  Mich.  625,  the 


75 


THE  LAW  OF  TAXATION 


110 


Sub.  2  provides  that  all  animals  kept  throughout  the  year 
in  some  township  other  than  where  the  owner  resides,  shall 
be  assessed  to  the  owner,  or  person  in  possession,  in  the 
township  where  kept12. 

Sub.  3  relates  to  bank  stock,  for  which  see  §66. 

Sub.  4  provides  that  the  personal  property  of  minors,  etc., 
shall  be  assessed  to  the  guardian  of  the  township  where  the 
guardian  resides13. 

Sub.  5  provides  that  estates  of  decedents  shall  be  assessed 
to  the  executor,  etc.,  in  the  township  and  school  district 
where  the  decedent  last  dwelt  until  notice  shall  be  given 
that  the  estate  is  distributed.  If  the  deceased  was  a  non- 


principal  office  of  plaintiff  was  in 
Detroit.  It  paid  no  taxes  there. 
Its  lumber  was  sawed  and  stored 
in  Manistique  Twp.  Under  Act. 
9  of  1882,  Sjib.  1,  it  was  held 
properly  assessed  int  Manistique 
Twp.  In  Hood  v.  Judkins,  61 
Mich.  575,  lumber  piled  on  leased 
grounds  to  drv,  is  held  "stored" 
under  the  law  of  1882,  and  as- 
sessable where  piled.  (Tax  law 
of  1884.)  The  words  "for  sale 
of  property,  office  mine,  farm, 
storage,  manufactory,  for  use  in 
connection  with  such  goods  and 
chattels,"  were  added  in  1882.  In 
Detroit  Transportation  Co.  v.  As- 
sessors, 91  Mich.  382,  it  is  held 
that  the  real  office  where  its  prin- 
cipal business  was  transacted  de- 
termined the  locus  of  relator's 
assessment,  notwithstanding  its 
articles  of  incorporation  named  a 
different  place.  (Act  24  of  Laws 
of  1867.)  In  Comstock  v.  Grand 
Rapids,  54  Mich.  641,  a  manufac- 
turer lived  in  one  ward  and  his 
warehouse  and  stock  in  trade  was 
in  another.  He  also  owned  a 
number  of  cars  for  shipping  his 


products,  for  which  the  railroad 
company  made  him  an  allowance 
for  "wheelage."  Held  that  the 
cars  were  assessable  where  the 
warehouse  was ;  that  they  need 
not  be  specified ;  that  he  should 
not  be  taxed  thereon  as  a  car 
loaning  company  (H.  S.  §1229)  ; 
and  that  the  fact  that  they  were 
assessed  in  both  wards  did  not 
vitiate  the  assessment  in  the  right 
ward.  In  Pioneer  Fuel  Co.  v. 
Malloy,  131  Mich.  466,  it  is  held 
that  where  a  commodity  is  shipped 
into  this  state  and  stored,  and 
orders  filled  therefrom,  it  is  lia- 
ble to  an  assessment  where 
stored.  In  Grand  Rapids,  etc.,  L. 
Co.  v.  Inland  Twp.,  136  Mich.  121, 
it  is  held  that  lumber  piled  in  a 
mill  yard  at  the  place  of  its  man- 
ufacture, is  taxable  to  the  owner 
in  the  township  where  piled.  Same 
in  Hines  Lumber  Co.  v.  Wells 
Twp.,  142  Mich.  366,  where  the 
lumber  was  nine-tenths  paid  for 
and  in  the  control  of  plaintiff. 

12.  C.  L.  '97,  §3737. 

13.  C.  L.  '97,  §3837. 


Ill 


LOCUS,  DESCRIPTION,  VALUATION 


resident  of  the  state,  such  personal  property  shall  be  assessed 
where  situated,  to  the  executor  or  person  in  possession14. 

§76.     Trustees  and  Agents. 

Sub.  6  provides  that  all  personal  property  under  the  con- 
trol of  a  trustee  or  agent,  whether  a  corporation  or  a 
natural  person,  may  be  assessed  to  such  trustee  or  agent  in 
the  township  where  he  resides,  except  as  otherwise  provided. 
Personal  property  mortgaged  or  pledged  shall  be  deemed  the 
property  of  the  person  in  possession  and  may  be  assessed  to 
him16. 

Sub.  7  provides  that  all  personal  property  situate  upon 
any  lands  of  the  United  States  or  of  this  state  shall  be 
assessed  to  the  owner  or  occupant  thereof  where  the  lands 
are  situated.  For  the  purposes  of  taxation,  all  buildings 
thereon  shall  be  deemed  personal  property ;  and  such  build- 


14.  In  Herrick  v.   Big  Rapids, 
53  Mich.  554,  it  is  held  that  a  leg- 
atee cannot  be  assessed  for  a  leg- 
acy while  it  is  still  in  the  hands 
of   an    executor.     In    Barstow   v. 
Big  Rapids,  56  Mich.  35,  it  is  held 
that    a   guardian    cannot    be    as- 
sessed upon  an  undistributed  leg- 
acy to  his  minor  ward.    In  Avery 
v.   DeWitt,   72   Mich.   25,   and   in 
Hardy  v.   Inhabitants,  etc.,  6  Al- 
len 281,   it   is  held   that  prior  to 
notice    of    distribution,    logs    and 
lumber  belonging  to  the  estate  of 
a  deceased  person  are  assessable 
to  the  executor  in   the  township 
in  which  the  deceased  last  dwelt. 
In    Orion    Twp.    v.    Axford,    112 
Mich.  179,  it  is  held  that  an  exec- 
utor  is   personally  liable   for  the 
tax  where  he  makes  a  distribution 
after  the  assessment  is  made. 

15.  C.  L,  '97,  53837.     In  Curtis 
v.    Richland   Twp.,   56   Mich.   478, 
it  is  held  that  securities  belonging 
to  a  resident  of  this  state  but  in 


the  custody  of  an  agent -living  in 
a  different  town,  may  be  assessed 
in  part  to  the  owner  and  in  part 
to  the  agent ;  but  if  the  same  se- 
curities are  assessed  to  both,  the 
assessment  to  the  owner  takes 
precedence.  In  Baars  v.  Grand 
Rapids,  129  Mich.  572,  and  in 
Howell  Village  v.  Gordon,  127 
Mich.  553,  it  is  held  that  choses 
in  action  like  notes,  etc.,  of  a  non- 
resident, in  the  hands  of  an  agent 
in  this  state,  are  not  subject  to 
taxation  here.  In  Detroit  v. 
Lewis,  109  Mich.  155,  it  is  held 
that  personal  property,  the  legal 
title  of  which  is  in  a  trustee, 
should  be  assessed  to  such  trus- 
tee. Same  holding  in :  Latrobe  v. 
Mayor,  19  Mel.  13;  Dorr  v.  Bos- 
ton, 6  Gray  131 ;  Davis  v.  Macey, 
124  Mass.  19.1;  Smith  v.  Beyers, 
43  Ga.  191 :  Price  v.  Hunter,  34 
Fed.  355;  People  v.  Assessors,  40 
N.  Y.  154. 


77 


THE  LAW  OF  TAXATION 


ings  need  not  be  removed  before  sale  for  taxes16.  Choses 
in  action,  like  notes,  owned  by  an  non-resident,  but  in  the 
hands  of  an  agent  here  for  collection,  are  not  assessable 
here17.  Likewise,  stock  of  a  foreign  corporation  in  the 
hands  of  an  agent  here,  is  not  subject  to  taxation;  but  prop- 
erty represented  by  land  contract  and  mortgages,  being  an 
interest  in  real  estate,  is  subject  to  an  inheritance  tax  here18. 

§77.     Personal  Property  of  Non- Residents. 

Forest  products  are  assessable  where  situate  unless  in 
transit  from  one  place  to  another.  The  fact  that  they  may 
be  piled  along  a  railroad,  or  in  a  lake,  awaiting  the  con- 
venience of  the  owner  to  ship,  does  not  render  them  in 
transit19. 


16.  In    re    Stanton    Est.,    142 
Mich.  491;   Baars  v.  Grand  Rap- 
ids,  129   Mich.   572;   Howell   Vil- 
lage v.  Gordon,  127  Mich.  533. 

17.  In    re    Stanton     Est.,     142 
Mich.  491. 

18.  Robertson   v.   Land     Com- 
missioner, 44  Mich.  274.    This  as- 
sessment    should     be     separated 
from  the  other  personal  property. 
A   deed   of   part  paid  state  land, 
on  payment  of  balance  due,  may 
be  demanded  from  the  state ;  but 
the  state  may  impose  as  a  condi- 
tion   in    the    sale   that   the    taxes 
shall  be  paid  before  a  deed  issues. 
In  Auditor  General  v.  Sage  Land 
Co.,  129  Mich.  182,  it  is  held  that 
state    tax   lands    should    be    as- 
sessed as  real  estate,  though  the 
tax    may    be    collected    when    as- 
sessed as  personality,  the  title  still 
being  in  the  state. 

19.  In     Maurer     v.     Cliff,     94 
Mich.   194,   it   is   held    that    logs 
piled    along    the     railroad     track 
awaiting  shipment  or  the  conve- 
nience of  the  owner,  are  not  in 
transit,  and  are  assessable  where 
piled.    In  Plainfield  Twp.  v.  Sage, 


107  Mich.  19,  it  is  held  that  logs 
stored  in  a  lake  awaiting  ship- 
ment by  rail,  are  not  in  transit, 
and  are  there  assessable.  Same 
principle  in  Hill  v.  Graham,  V- 
Mich.  659  (under  Act  of  1885), 
and  Mitchell  v.  Lake  Twp.,  126 
Mich.  22.  The  addition  to  this 
subdivision  (15  of  §3838),  in  1889, 
of  the  words,  "or  on  the  banks  or 
shores  of  any  lake,  pond  or 
stream  of  this  .  state,  when  the 
same  is  not  at  the  place  where  it 
is  to  be  manufactured,"  causes  a 
different  holding  in  Elk  Rapids 
Iron  Co.  v.  Helena  Twp.,  117 
Mich.  211,  where  logs  banked  on 
the  bank  of  a  stream  are  held  in 
transit.  In  Fletcher  v.  Alcona 
Twp.,  72  Mich.  18,  it  is  held  that 
growing  timber,  reserved  in  a 
sale  of  real  estate,  is  not  personal 
property  or  forest  products,  and 
should  be  assessed  to  the  owner 
of  the  land.  In  Hovey  v.  Mc- 
Cracken,  81  Mich.  314,  a  contract 
provided  that  the  title  to  lurmVr 
should  remain  in  the  vendor  until 
it  was  shipped  free  from  insur- 
ance charges  or  taxes.  Held,  ihat 


113  LOCUS,  DESCRIPTION,  VALUATION  §  77 

Statutory  Provision. 

C.  L.  1897,  §3837,  Sub.  8,  Tax  Law,  §14,  provides: 
"Personal  property  of  non-residents  of  the  State,  and 
all  forest  products  owned  by  residents  or  non-residents, 
or  estates  of  deceased  persons,  shall  be  assessed  in  the 
township  or  ward  where  the  same  may  be,  to  the  person 
having  control  of  the  premises,  store,  mill,  dock,  yard, 
piling  ground,  place  of  storage,  or  warehouse  where 
such  property  is  situated  in  such  township,  on  the 
second  Monday  of  April  of  the  year  when  the  assess- 
ment is  made,  except  that  where  such  property  is  in 
transit  to  some  place  within  the  State  it  shall  be 
assessed  in  such  place,  except  that  where  such  property 
is  in  transit  to  some  place  without  the  State  it  shall  be 
assessed  at  the  place  in  this  nearest  to  the  last  boom 
or  sorting  gap  of  the  stream  in  or  bordering  on  this 
State  in  which  said  property  will  naturally  be  last 
floated  during  the  transit  thereof,  and  in  case  the  transit 
of  any  such  property  is  to  be  other  than  through  any 
watercourse  in  or  bordering  on  this  State,  then  such 
assessment  shall  be  made  at  the  point  where  such  prop- 
erty will  naturally  leave  the  State  in  the  ordinary  course 
of  its  transit ;  *  *  *"  This  section  further  provides 
that  such  property  may  be  assessed  to  the  owner,  or  to 
the  person  or  corporation  in  control  thereof,  and  in 

the  lumber  was  properly  assessed  Saginaw,  banked  logs  in  different 
to  the  vendor  before  it  was  townships  for  shipment  to  a 
shipped.  In  Pardee  v.  Freesoil  place  in  the  defendant  township. 
Twp.,  74  Mich.  81,  it  is  held  that  where  they  were  to  be  transferred 
logs  temporarily  frozen  up  in  a  to  a  vendee,  a  non-resident  of  tl;is 
lake,  awaiting  a  thaw  to  float  state.  Held  that  the  logs  W.T-.' 
them  away,  were  in  transit  and  properly  assessable  in  the  defend- 
not  there  assessable.  (Taxes  of  ant  township.  In  Boyce  v.  Cutter. 
1887.)  In  Coming  v.  Masonville  70  Mich.  539,  it  is  held  that  logs 
Twp.,  74  Mich.  177,  the  plaintiff,  in  transit  cannot  be  assessed  at  a 
having  his  mill  and  business  »n  destination  they  never  reach 


§  78  THE  LAW  OF  TAXATION  114 

case  of  logs,  to  the  person  or  company  running  or 
storing  them.  It  also  provides  a  lien  to  any  person, 
not  the  owner,  who  may  pay  such  tax. 

C.  L.  1897,  §3838,  Tax  Law,  §15,  provides:  "All 
forest  products  in  transit  on  the  second  Monday  in 
April  of  each  year  and  thereafter  found  in  the  waters 
or  streams  of  this  State,  when  the  same  is  not  at  the 
place  where  it  is  to  be  manufactured,  shall  be  held  to 
have  a  place  of  destination  at  the  sorting  grounds  of 
the  rafting  and  driving  agents  or  booming  company 
nearest  the  mouth  of  the  stream,  unless  the  contrary 
shall  be  made  to  appear  by  the  owner  or  party  having 
the  same  in  charge:  *  *" 

This  section  also  provides  that  lumber  and  forest 
products  left  in  any  yard  or  railroad  reserve  shall  not  be 
deemed  in  transit,  but  shall  be  assessed  where  situated, 
to  the  owner  or  corporation  have  control  of  such  place 
of  piling  or  storage. 

When   in   transit,   however,   they   are   assessable   to  the 
owner  at  their  place  of  destination20. 

§78.     To  Whom  Property  May  be  Assessed. 

The  foregoing  sections  designate  to  whom  property  may 
be  assessed. 

C.  L.   §3922  provides  that  no  tax  shall  be  held  invalid 


20.  In  Brooks  v.  Arenac  Fwp  ,  awaiting  water  to  float  them  away, 
71  Mich.  231,  it  is  held  that  logs  are  held  to  be  in  storage  and  as- 
in  transit  are  assessable  to  the  sessable  where  they  were.  In 
owner,  at  their  place  of  destina-  Spanish  River  Lumber  Co.,  v. 
tion  in  this  state  and  that  the  Bay  City,  113  Mich.,  181,  it  is 
owner  need  not  appear  before  the  held  that  on  assessment  of  lum- 
board  of  review  of  each  township  ber  on  a  dock  to  the  person  in 
they  pass  through  on  the  diy  the  control  of  the  dock,  without  stat- 
assessment  is  made  or  accrues.  In  ing  whether  he  is  owner  or  -itjent, 
Hill  v.  Graham,  72  Mich.  659,  logs  is  valid,  irrespective  of  the  own- 
piled  on  the  bank  of  a  creek  ership  of  the  dock. 


115  LOCUS,  DESCRIPTION,  VALUATION  §  78 

on  account  of  the  property  having  been  assessed  without  the 
name  of  the  owner,  or  in  the  name  of  any  person  other  than 
the  owner. 

An  assessment  of  real  estate  owned  by  tenants  in  common 
as  partnership  property  of  the  same  parties,  is  not  void21. 
Real  estate  not  in  the  hands  of  an  executor,  etc.,  may  be 
assessed  to  the  heirs  or  devisees  jointly,  without  naming 
them23.  Property  may  be  assessed  in  the  firm  name  though 
one  partner  is  dead23. 

The  tax  does  not  partake  so  much  of  the  nature  of  a  judg- 
ment as  to  defeat  a  levy  because  of  a  mistake  in  the  name. 
Thus,  a  tax  assessed  as  to  a  copartnership  instead  of  to  a 
corporation  may  be  enforced  against  the  corporation,  it  being 
composed  of  the  same  persons,  being  the  successor  to  the 
partnership24.  Upon  the  same  principle,  a  tax  assessed  to 
a  corporation  or  its  manager,  in  the  alternative,  may  be  satis- 
fied by  a  levy  on  the  corporate  property25.  A  mistake  in  the 
name  of  a  firm  will  not  invalidate  the  assessment  the  under- 
lying principle  being  that  a  person  whose  property  is  liable 
to  an  assessment  for  taxes  shall  not  be  permitted  to  evade 
payment  of  his  just  proportion  of  the  public  burdens  by 
errors  or  omissions  that  do  not  prejudice  his  rights2*. 

21.  Hubbard     v.     Winsor,     15  James  H.  Hill  &  Sons,  a  copart- 
Mich.  146.  nership,    was    assessed    to    James 

22.  C.  L.  53826.     Dickinson  v.  H.   and    Arthur   Hill   &   Co.     In 
Reynolds,  48  Mich.  159.  Sage  v.  Burlingame,  74  Mich.  120, 

23.  Blodgett   v.    Muskegon,    60  a  copartnership  is  held  liable  for 
Mich.   580 ;    Oliver   v.   Lynn,    130  taxes  assessed  upon  lands  belong- 
Mass.  143.  ing  to  one  of  the  firm,  where  the 

24.  Petrie  Lumber  Co.  v.  Col-  firm  had  directed  the  assessment 
lins.  66  Mich.  64;  Farnsworth  Co.  to  be  made  as  it  was.    In  Bradley 
v.  Rand,  65  Me.  19;  Loud  &  Sons  v.    Bouchard,   85    Mich.   18,   it   is 
Lumber  Co.  vs.  Hagar.  118  Mich.  held  that  the  assessment  of  per- 
452.  sonal  property  in  the  name  of  a 

25.  Mich.  Dairy  Co.  v.  McKin-  person  other  than  the  real  owner, 
lay,   70   Mich.  574.  if  it  appear  that  such  assessment 

26.  In     Hill     v.     Graham,     72  was  not  made  knowingly  for  the 
Mich.   659,  property  belonging  to  purpose  of  defrauding  or  impos- 


§  79 


THE  LAW  OF  TAXATION 


lit) 


Choses  in  action  and  personal  property  like  notes,  etc.,  of 
a  non-resident,  in  the  hands  of  an  agent  within  the  state, 
are  not  subject  to  taxation27. 

§79.     Non-Resident  Owners  of  Real  Estate. 

A  provision  that  such  owners  shall  be  separately  assessed 
is  mandatory.  The  tax  on  resident  owners  of  real  estate 
may  be  collected  by  levy  and  distress,  or  suit;  and  the  resi- 
dent owner  is  entitled  to  notice  of  this  assessment  before  it 
is  enforced.  It  would  operate  as  a  fraud  upon  him  if  a 
parcel  of  real  estate  in  his  possession,  could  be  omitted 
from  the  list  of  property  assessed  to  him,  and  taxed  on 
another  part  of  the  roll,  where,  if  the  law  is  obeyed,  he 
knows  it  cannot  be  placed  and  where  he  would  not  be  likely 
to  look  for  it2*. 


ing  an  unjust  tax  upon  such  per- 
son, will  not  defeat  a  levy  for  the 
tax  against  the  real  owner.  In 
Graetwick  Lumber  Co.  v.  Oscoda 
Village,  97  Mich.  221,  228,  it  is 
held  that  a  corporation,  like  an 
individual,  may  be  Known  by  dif- 
ferent names,  and  that  parol  evi- 
dence of  its  identity  is  admissible ; 
that  an  assessment  of  a  corpora- 
tion describing  it  by  its  initials 
only,  is  sufficient.  Same  in  Loud 
&  Sons  Lumber  Co.  v.  Hagar,  118 
Mich.  452.  In  Fletcher  v.  Post, 
104  Mich.  424,  it  is  held  that  an 
assessment  of  firm  property  to 
one  of  a  firm  is  valid  as  against 
the  firm,  under  the  law  of  1889. 
It  is  intimated  that  under  the  law 
of  1891,  such  misnomer  would  be 
fatal  as  to  a  tax  on  personal  prop- 
erty. In  Iron  Star  Co.  v.  Wehse, 
117  Mich.  487,  it  was  held  that 
planitiff  could  not  complain  of 
an  assessment  which  described  it 
as  "The  Great  Western  Iron  Co." 
by  which  name  it  was  sometimes 


known.  In  Menominee  v.  Lum- 
ber Co.,  119  Mich.  201,  an  assess- 
ment to  S.  K.  Martin,  instead  of 
S.  K.  Martin  Lumber  Co.,  is  sus- 
tained. In  Mann  v.  Carson,  120 
Mich.  631,  where  the  real  owner 
was  assessed  for  his  lands  which 
were  occupied  by  another,  it  was 
held  that  he  could  not  complain 
because  the  occupant  was  not  also 
assessed  thereon.  In  Auditor 
General  v.  Keewenaw  Ass'n,  107 
Mich.  405,  a  tax  on  land  is  held 
good  though  the  name  of  the  own- 
er or  occupant  was  not  in  the  roll. 

27.  Baars  v.  Grand  Rapids,  129 
Mich.     572;     Howell     Village     v. 
Gordon,  127  Mich.  553. 

28.  Rayner    v.    Lee,    20    Mich. 
384,    389;    Young    v.    Martin,    2 
Yeates  312 ;  Rising  v.  Granger,  1 
Mass.  48;  Baiker  v.  Heseltine,  27 
Me.    354 ;    Hanscom    v.    Hinman, 
30    Mich.    419;    Seymour   v.    Pet- 
ers, 67  Mich.  415 ;  Hill  v.  Warrell, 
87   Mich.    135;    Fowler   v.    Camp- 
bell ,100  Mich.  398,  under  tax  law 


li;  LOCUS,   DESCRIPTION,   VALUATION  §§80,81 

§80.     Unoccupied  Premises. 

The  word  "occupied"  does  not  signify  the  same  as 
"seated"  or  "surveyed"  in  the  tax  laws  of  some  other 
states.  Unoccupied  premises  are  vacant  premises,  mean- 
ing that  no  one  is  in  the  actual  possession  exercising  any 
acts  of  control  over  the  premises,  or  any  part  of  them". 

§81.     Description  of  Real  Property. 

The  description  of  real  estate,  either  on  the  rolls  or  in  the 
tax  deed,  must  be  sufficiently  accurate  to  identify  the  prop- 
erty. In  a  conveyance  between  individuals,  where  the  pur- 
pose is  to  explain  and  give  operation  to  the  intention  of 
the  parties,  certainty  may  be  imparted  to  the  deed  by 
parol  testimony  that  the  particular  land  was  designated, 
and  that  the  grantee  was  put  into  possession.  But  this 
rule  does  not  apply  to  tax  titles,  with  which  the  owner  has 
nothing  to  do,  and  there  being  no  intention  to  which  opera- 
tion can  be  given.  The  assessment  is  the  foundation  of  all 
subsequent  proceedings,  and,  in  order  to  impart  certainty 
and  validity  to  them,  the  description  of  the  land  in  the 
assessment  must  be  sufficiently  definite  and  certain  as  not 
to  resort  to  extrinsic  proof  of  the  character  above  men- 
tioned80. 

The  requirements  as  to  the  description  in  tax  proceed- 
ings are  not  only  aimed  at  securing  an  identification  of  the 
property  that  will  be  certain,  but  are  designed  to  afford 
notice  to  the  owner  that  proceedings  affecting  his  property 

of  1889;    Pieotter  v.   Whaley,   80  29.     Hill   v.   Warrell,   87   Mich. 

Mich.     257,     construing     H.     S.  m. 

§1007;  Tweed  v.  Metcalf,  4  Mich.  30.     See  85391,  453,  as  to  decree 

ssfi ;    In    Burroughs    v.    Goff,    64  Jackson    v.    Sloman,    117    Mich. 

Mich.    465.    It    is    held    that    land  126,    129;    Jones    v.    Pelham,    ?4 

should    he    assessed    as    resident  Ala.  20s ;   People  v.  Mahoney.  55 

when   it  is  occupied  by  a  person  Cal.  286. 
under  a  contract  of  purchase. 


§  82  THE  LAW  OF  TAXATION  118 

are  pending.  The  description,  therefore,  should  be  such  as 
to  not  mislead  him,  if  it  departs  from  the  strict  accuracy 
as  stated  by  statutory  rules31.  Where  the  original  assess- 
ment is  too  indefinite  and  uncertain,  an  order  of  the  board 
to  reassess  it  upon  the  proper  description  is  without  force 
where  the  first  description  was  too  indefinite  to  form  the 
basis  of  a  tax32. 

§82.     Abbreviations. 

The  statute  provides  that  abbreviations  heretofore  in  use 
shall  be  a  sufficient  description  of  real  property33. 

Statutory  Provision. 

§8  of  Act  96  of  Laws  of  1844  C.  L.  §3848,  Sub. 
7,  Tax  Law,  §25,  provides:  "It  shall  be  sufficient  to 
describe  the  real  property  assessed  upon  any  roll  and 
in  all  other  proceedings  under  this  act,  in  the  manner 
heretofore  in  use  by  initials,  letters,  abbreviations,  and 
figures." 

In  determining  the  meaning  of  abbreviations,  the  entire 
roll  may  be  taken  into  consideration,  together  with  the  uni- 
formity in  the  order  in  which  the  abbrevations  appear.  If 
the  abbreviations  are  such  as  would  be  understood  by  the 
general  public,  they  will  be  deemed  sufficient34.  The  captions 
at  the  head  of  the  columns  are  to  be  read  in  connection 


31.  Jackson     v.     Sioman,     117  E.  y$.     In  Blakeley  v.  Bestor,  13 
Mich.  126,   128;   Auditor   General  111.    713,    a   description   was   held 
v.  Sparrow,  116  Mich.  574.  good    in    which    only    two    sides 

32.  Auditor  General  v.   Smith,  were  described.     See  also,  Hodg- 
125  Mich.  576.  don  v.   Burleigh,   4  Fed.   R.  117; 

33.  Kneeland      v.      Kull,      116  State  v.  Mayor,  36  N.  J.  L.  288; 
Mich.  55.  Paris   v.  Lewis,   85   111.   597;   At- 

34.  Audtior    General   v.    Spar-  kins  v.   Hinman,   2   Gilman,   451; 
row,  116  Mich.   574,  587,  holding  Harrington  v.  Fish,  10  Mich.  415. 
that  N.  E.  could  be  tafcen  for  N. 


119 


LOCUS,  DESCRIPTION,  VALUATION 


§83 


with  the  abbreviations;  and  E.  and  W.,  etc.,  will  be  under- 
stood as  referring  to  East,  West,  etc.88. 

§83.     Section  Lands. 

Sub.  1  of  C.  L.  '97,  §3848,  provides  that  if  the  land 
assessed  be  an  entire  section,  it  may  be  described  by  the 
number  of  the  section,  township  and  range.  The  word 
"township"  in  the  statute  signifies  surveyed  township38. 

Sub.  2  provides  for  describing  lands  by  designating  the 
subdivision  of  a  section,  with  the  township  and  range. 

The  number  of  the  section  may  be  omitted  if  there  is  not 
another  section  in  the  same  political  division  containing  a 
section  of  the  same  number.  The  same  rule  would  follow 
as  to  township  and  range87. 

Sub.  3  provides  that  land  may  be  described  as  a  distinct 
part  of  a  subdivision  of  a  section,  or  by  designation  of  the 
lot,  or  other  lands  by  which  it  is  bounded. 

When  fractional  sections  are  divided  into  lots,  by  the 


35.  Sibley   v.    Smith,    2    Mich. 
487,  503. 

36.  Manistee    Lumber    Co.    v. 
Springfield    Twp.,    92    Mich.    277. 

37.  In     Bird    v.     Perkins,     33 
Mich.    28,    the   property   was   de- 
scribed as  E.  y?  of  s.  E.  y*, 

omitting  the  section  number;  but 
as  that  was  the  only  E.  %  of  S. 
E.  y$  within  the  Village,  it  was 
held  a  good  description.  In 
Dumphey  v.  Auditor  General,  123 
Mich.  354,  land  described  as  be- 
ing in  Dundee  Twp.,  in  Sec.  8, 
T.  6,  R.  6,  held  a  good  description, 
there  being  two  sections  number- 
ed 8  in  Dundee  Twp.  In  Taylor 
v.  Youngs,  48  Mich.  ?69.  the  de- 
scription of  land  as  being  in  one 
political  township  when  it  was 
actually  in  another,  is  held  fat-il. 
though  it  was  not  assessed  in  the 


township  where  located.  In  Au- 
ditor General  v.  Keewenaw  Ass'n, 
107  Mich.  405,  it  is  held  that  the 
name  of  the  township  on  the 
back  of  the  collector's  roll  is 
sufficient;  it  need  not  appear  on 
each  page.  In  Husted  v.  Wil- 
loughby,  117  Mich.  56,  a  descrip- 
tion as  "all  that  part  of  S.  W. 
y\  of  N.  W.  Frac.  y\  lying  north 
of  County  Drain  known  as  Sid- 
•well  and  Relaid  Mills  Drain," 
not  giving  the  section  number,  is 
held  sufficient  in  a  declaration, 
there  being  but  one  such  descrip- 
tion north  of  the  drain.  In  Petit 
v.  Flint,  etc..  Ry.,  114  Mich.  362, 
an  assessment  which  describes 
land  as  "West  fractional  half  of 
N.  W.  y*  of  Sees.  15.  16  and  17," 
is  held  fatallv  defective. 


§84 


THE  LAW  OF  TAXATION 


120 


government,  for  sale,  they  should  not  be  described  as  regu- 
lar parts  of  a  section38. 


§84.    Plats. 

Reference  to  plats,  whether  recorded  or  not,  is  good39. 


38.  In  Amberg  v.  Rogers,  9 
Mich.  332  (1861),  the  S.  W.  Frac. 
J4  of  a  section  contained  100 
acres,  and  was  patented  in  one 
description.  An  assessment  of 
the  E.  Y-i  of  this  was  held  bad, 
but  a  sale  of  the  E.  Y2  was  sus- 
tained, it  being  presumed  that  a 
change  had  been  made  after  as- 
sessment under  C.  L.  1857,  §354, 
that  the  entire  tract  had  been  as- 
sessed as  one  parcel,  the  rolls 
not  being  in  evidence,  and  that 
part  had  been  paid.  In  other 
words,  the  description  was  suffi- 
cient for  sale  but  not  for  an  as- 
sessment. In  King  v.  Potter,  18 
Mich.  134,  what  the  government 
has  designated  as  Lot  1,  was  de- 
scribed in  the  assessment  and 
deeds  either  as  N.  E.  J4,  or  N. 
R.  Fr.  54  or  N.  E.  5<  of  N.  W.  - 
Fr.  Yi,  the  last  description  includ- 
ing Lot  1.  Held,  as  insufficient 
description.  A  description  as  N. 
E.  Fractional  Y*  of  N.  W.  J4  is 
held  unknown  to  the  law.  In 
Gillman  v.  Riopelle,  18  Mich. 
145,  a  description  on  the  roll 
as  "that  part  of  private  claim 
61  lying  east  of  the  north 
branch  of  the  River  Ecorse 
Township  3  S.  of  R.  11,  E."  is 
held  sufficient,  though  the  acre- 
age was  more  than  stated  in  the 
roll.  In  Harts  v.  Mackinac  Isl., 
131  Mich.  680,,  property  described 
as  "W.  */3  part  of  P.  C.  No.  331, 
five  cottages  and  barn,  less  lot 
deeded  to  John  Brown,"  is  held 
a  sufficient  description.  In  Vet- 
terly  v.  McNeal,  129  Mich.  507, 


where  all  there  was  of  the  W. 
Yi,  of  a  section  was  a  S.  W.  Fr. 
J4,  its  description  as  the  West 
Fractional  half  of  the  section  is 
held  harmless  error. 

39.  In  Lefevre  v.  Detroit,  2 
Mich.  587,  an  assessment  upon 
"St.  Peter  and  St.  Pauls  Cathe- 
dral," is  held  void  since  it  neither 
describes  the  lot  nor  names  the 
occupant.  In  Johnstone  v.  Scott, 
11  Mich.  232,  240,  it  is  held,  under 
C.  L.  1846,  p.  105,  that  lots  cannot 
be  assessed  by  their  number  with 
reference  to  an  unrecorded  plat, 
though  such  a  reference  would  be 
good  as  between  individuals.  In 
Burrows  v.  Gibson,  42  Mich.  121, 
a  levy  upon  "lot  7  of  the  sub- 
division of  lots  12,  13,  and  14  of 
the  Labrose  and  Baker  farms  in 
Detroit,"  instead  of  "lot  7  of 
John  Gibsons  Subdivision  of  lots 
13,  13,  14,  and  18  of  the  Labrose 
and  Baker  farms,"  is  held  fatally 
defective.  In  Jackson  v.  Sloman, 
117  Mich.  126,  an  assessment  of 
"part  of  the  F.  &  P.  M.  Sub- 
division," instead  of  "F.  &  P.  M. 
Park  Subdivision  of  part"  of  a 
designated  fractional  section  of 
land,  is  held  void.  In  Wilkin  v. 
Keith,  121  Mich.  66.  a  description 
as  "Hoyts  Plat  of  the  City  of 
Saginaw,"  instead  of  "Hoyts  Plat 
of  East  Saginaw,"  is  held  suffi- 
cient, the  cities  having  been  con- 
solidated. In  Mann  v.  Carson, 
120  Mich.  631,  a  description  in  the 
published  tax  list  as  "entire  Block 
15"  of  a  certain  plat,  is  held 
sufficient.  In  Audtor  General  v. 


LOCUS,  DESCRIPTION,  VALUATION  i  88 

Statutory  Provision. 

C.  L.  '97,  §3848,  Sub.  4,  provides:     "In  the  case 
of  land  platted  or  laid  out  as  a  town,  city  or  village, 
the  same  may  be  described  by  reference  to  such  plat 
and  by  the  number  of  the  lots  and  blocks  thereof, 
whether  such  plat  be  recorded  or  not." 
Where  platted  lots  are  contiguous  and  owned  as  one  par- 
cel, they  may  be  assessed  together  as  one  tract40.    Although 
the  number  of  acres  contained  in  a  plat  is  erroneously  stated, 
yet  if  the  plat  is  correctly  named,  the  description  will  be 
sufficient4,1-     Where  land  is  correctly  described,  and  then  a 
statement  erroneously  adds  that  such  land  is  in  a  certain 
plat,  the  latter  statement  will  be  deemed  surplusage42. 

§85.     Contiguous  Parcels. 

Contiguous  parcels,  owned  by  one  person  may  be  assessed 
together,  unless  demand  be  made  in  writing  to  have  each 
subdivision  assessed  separately.  Where  land  is  so  assessed 
for  taxes  and  sold  under  a  decree  of  the  court,  the  decree 
becomes  a  judicial  determination  of  the  validity  of  the 
assessment48. 


Sessions,     100     Mich.     343.     the  of  the  assessment  in  such  manner, 

court  does  not  decide  whether  a  41.    Jackson     v.     Mason,     145 

reference   to   an   unrecorded   plat  Mich.  338 ;  in  Auditor  General  v. 

is  sufficient.    In  Mayot  v.  Auditor  Sparrow,  116  Mich.  574. 

General,   140   Mich.   593,  property  42.    Hayward  v.  O'Connor,  145 

on  an  unrecorded  plat,  a  copy  of  Mich.   52.     Petitioner  was  owner 

which    could    not    be    found,  was  of  N.  E.  V*  of  N.  W.  *4  of  Sec. 

purchased  on  lots  "809."  and  was  31.   T.   25   W   R.    13    W.,   in   the 

J  ater  assessed  as  'lot  10."    This  was  Village  of  Thompsonville,  Burgie 

held    not    to    confer    jurisdiction  County.       In     the     petition,     the 

upon  the  Court  to  order  a  sale ;  words  "plat  of  Johnson  City"  was 

and  the  sale  was  cancelled  and  the  added     after  the  section  numher. 

cloud  removed.  43.    Kneeland  v.  Hull.  118  Mich. 

40.     Kneeland      v.      Hull,      116  55;    Haydcn    v.    Foster,    13    Pick. 

Mich.   56.   and   in   any  event,   the  492,  497. 
decree  of   sale  heals  the  legality 


§§  86,  87  THE  LAW  OF  TAXATION  122 

Statutory  Provision. 

•  C  L.  '97,  §3847,  Tax  Law,  §24,  among  other  things 
provides:  "All  continuous  subdivisions  of  any  sec- 
tion that  are  of  equal  value  and  are  owned  and  occu- 
pied by  one  person,  firm  or  corporation,  and  all  un- 
improved lots  in  any  block  that  are  of  equal  value  and 
are  contiguous  and  owned  and  occupied  by  one  per- 
son, firm  or  corporation  shall  be  assessed  as  one  parcel, 
unless  demand  in  writing  is  made  by  the  owner  or 
occupant  to  have  each  subdivision  of  the  section  or 
each  lot  assessed  separately;  but  failure  to  assess  such 
contiguous  parcels  as  entireties  as  herein  provided 
shall  not  invalidate  the  assessment  as  made." 

C.  L.,  '97,  §3848,  Sub.  4,  provides:  "When  two  or 
more  parcels  of  land  adjoin  and  are  used  and  occupied 
together,  they  may  be  assessed  by  one  valuation." 

§86.    Estoppel. 

Where  the  misdescription  of  land  on  the  roll  is  caused 
by  following  the  copy  of  the  description  furnished  by  the 
owner,  he  cannot  set  up  the  misdescription  as  ground  for 
equitable  relief44. 

§87.     Personal  Property. 

This  class  of  property  does  not  have  to  be  described  or 
enumerated,  excepting  in  the  cases  especially  required  by 
statute,  such  as  primary  school  lands  and  improvements  or 
buildings  upon  state  or  government  property.  When  it  is 
enumerated,  it  is  surplusage46. 

44.  Wisner  v.  Hubbard,  15  45.  Comstock  v.  Grand  Rapids, 
Mich.  146.  54  Mich.  641. 


123  LOCUS,  DESCRIPTION,  VALUATION  §§88,89 

£88.     Tax  Statements. 

The  statute  provides  for  obtaining  a  sworn  statement 
from  each  tax  payer,  and  forbids  the  using  of  the  state- 
ment for  any  other  purposes  than  making  the  assessment46. 
This  statute  does  not  require  the  supervisor  to  visit  each 
tax  payer  personally,  as  this  might  be  impracticable;  but 
he  should  at  least  mail  such  statements  to  the  tax  payers 
and  use  all  reasonable  means  to  carry  out  the  purpose  of 
the  statute.  He  will  be  liable  to  indictment  if  he  does  not 
do  so.  The  statute  is  mandatory,  not  directory47.  This 
statement  is  not  admissible  in  evidence  in  a  suit  to  recover 
taxes  paid  under  protest,  against  the  maker.  These  state- 
ments are  not  public  records48.  The  object  of  the  statute 
requiring  taxpayers  to  furnish  lists  is  to  bring  to  light 
property  which  might  otherwise  escape  the  search  of  the 
assessor.  They  are  intended  to  furnish  him  information 
upon  which  he  and  the  board  of  review  may  make  a  fair 
assessment  of  property.  If  the  statements  contain  valua- 
tions of  the  items  of  property  mentioned  in  them,  such 
estimates  are  not  conclusive  upon  the  assessor.  If  they 
were,  the  owner,  and  not  the  assessor,  would  practically 
assess  the  property49. 

^  89.     Valuation. 
The  constitution  provides  that  all  assessments  hereafter 

46.  See  §48,  supra.    C.  L.,  '97,  form  the  conscience  of  the  offic- 
§§3841-3846,   first   enacted   in    Act  ^rs.   In  Gratfick,  etc..  Lumber  Co.  v. 
200  of   Public   Acts  of  1891,  and  Oscoda  Village,  97  Mich.  221   (Tax 
amended  in  1899.  of  1890),  it  was  held  that  failure 

47.  Turner    v.    Grcuit    Judge,  to  get  tax  statements,  under  the 
95  Mich.  1.  law   of    1889,   did   not   avoid   the 

4R.     Tn  Brooks  v.  Arenac  Twp.,  tax. 

71  Mich.  231,  it  was  held  that  the  49.     Bowman  v.   Circuit  Judge, 

supervisor  could  ask  for  a  sworn  129  Mich.  608,  610. 

statement  if  he  desired ;  yet,  under  Constitution  of  1850,  Art.  XIV. 

the  law    then    in    force,  such  act  §12,     Beecher's     Constitution     of 

would   only  to  have  been   to  in-  1908,  Art.  X,  §7. 


§  89  THE  LAW  OF  TAXATION  124: 

authorized,  shall  be  on  property  at  its  cash  value.  This 
provision  does  not  apply  to  licenses,  or  taxes  upon  busi- 
ness, which  are  in  the  nature  of  specific  taxes50. 

The  statute  C.  L.  §3847,  requires  all  property  to  be 
assessed  at  its  true  cash  value ;  and  this  is  defined  to  be  the 
usual  selling  price  where  the  property  is,  being  the  price 
which  could  be  obtained  therefor  at  private  sale  and  not  at 
forced  or  auction  sale.  (C.  L.  §3850.) 

A  failure  to  list  property  for  taxation  in  accordance  with 
the  law  does  not  constitute  a  wrong  to  an  individual  unless 
he  can  show  that  his  individual  assessments  are  thereby 
made  a  larger  proportion  of  the  aggregate  taxable  prop- 
erty than  they  should  have  been.  The  wrong  is  a  public 
wrong  and  should  be  redressed  by  public  prosecution51. 
The  listing  of  the  property  is  clerical  work,  but  the  ascer- 
taining and  determining  its  value  is  judicial,  requiring  the 
judgment  of  the  supervisor  under  his  oath  of  office,  and 
cannot  be  dispensed  with  in  making  a  valid  assessment 
roll52. 

It  was  part  of  the  agreement  by  which  Michigan  was 
admitted  to  the  Union  that  non-resident  proprietors  should 
not  be  assessed  higher  than  residents53. 

It  is  not  an  absolute  necessity,  however,  that  the  super- 
visor view  each  piece  of  land,  when  it  is  an  unbroken 
wilderness.  He  may  not  have  the  time.  He  would  there- 
fore be  justified  in  assuming  that  it  was  substantially  alike, 

50.  Kitsor    v.    Mayor,    etc.,    26  Mich.  346.   In  Peninsular  Iron  Co. 
Mich.  325;  Walcott  v.  People,  17  v.    Crystal   Falls   Twp.,   60   Mich. 
Mich.  68 ;  In  Avery  v.  E.  Saginaw,  510,  it  is  held  proper  for  a  clerk 
44  Mich.  587,  it  is  held  that  this  to  make  out  the  roll  if  the  super- 
provision  is  designed  to  protect  as  visor  dictates  the  valuations, 
well     against     over-valuation     as  52.     Woodman  v.  Auditor  Gen- 
vrdcr  valuation.  eral,  52  Mich.  28. 

51.  Moss     v.      Cummings,     44  53.     Ordinance  of  1836. 
Mich.    359;     Paldi    v.    Paldi,    84 


LOCUS,  DESCRIPTION,  VALUATION  §§90,91 

just  as  government  and  state  lands  are  offered  for  sale 
on  a  similar  basis64. 

§90.     Excessive  Valuation. 

If  a  supervisor  fraudulently  and  purposely  assess  par- 
ticular property  at  more  than  its  value,  equity  will  restrain 
the  excessive  tax.  The  owner  must  offer  to  pay  his  just 
share,  or  what  his  taxes  would  have  amounted  to  upon  a 
just  valuation65.  But  an  excessive  valuation  alone  will  not 
be  deemed  proof  of  a  corrupt  or  fraudulent  assessment86. 

§91.     Rebate  and  Refunding  of  Tax. 

It  is  not  in  the  power  of  a  municipality,  after  the  valua- 
tion has  been  fixed  and  the'  taxes  extended,  to  make  any 
rebate  to  a  tax  payer  for  property  upon  the  roll,  which 
may  have  been  destroyed  by  fire  since  its  listing57.  Neither 
can  the  municipality,  in  the  absence  of  fraud,  be  compelled 
to  refund  an  illegal  tax  voluntarily  paid.  It  would  be  a 
dangerous  precedent  to  establish,  that  after  paying  taxes 
for  a  period  of  time,  the  wisdom  or  necessity  of  levying 
such  tax  could  be  inquired  into  by  the  tax  payers  after  it 
was  discovered  by  the 'judgment  of  some  court,  after  the 
levy  of  the  tax  and  payment,  that  such  tax  was  illegal  and 
injudicious58.  When  an  illegal  tax  is  raised  and  paid  into 

54.  Sawyer-Goodman     Co.     v.      Griffin,    140    Mich.    427,    where    a 
Crystal  Falls  Twp.,  56  Mich.  597.      mistake  was  made  in  apportioning- 
Peninsular    Iron    Co.    v.    Crystal      the  tax. 

Falls  Twp.,  60  Mich.  510.  57.    Case  v.  Detroit,  129  Mich. 

55.  Merrill    v.    Humphrey.    24  289.     In  Curry  v.  Tawas  Twp.,  81 
Mich.     170.      In     Gratwick,    etc.,  Mich.  355,  it  is  held  that  a  liquor 
I. umber  Co.  v.  Oscoda,  97  Mich.  tax  could  not  be  recovered  back. 
221.   231.   it   is   held   a   wilful    or  although  the  party  did  not  engage 
fraudulent  over-valuation  will  be  in  the  business  at  all. 
reviewed.  58.     Manistee    Lumber    Co.    v. 

56.  Auditor   General   v.    Stiles,  Springfield    Twp.,    92    Mich.    277. 
83  Mich.  460;  Auditor  General  v.  281. 


§  92  THE  LAW  OF  TAXATION  1:> 1) 

the  treasury  for  any  particular  purpose,  it  should  be  applied 
to  that  purpose  to  the  extent  of  paying  debts  incurred  upon 
the  strength  of  the  tax59. 

§92.     Valuation.     Low,  or  Omission  of, 

It  is  the  settled  law  of  this  state  as  well  as  elsewhere, 
that  when  the  assessing  officers  have  purposely,  in  violation 
of  law,  exempted  property  from  taxation,  so  that  the  bur- 
den of  taxation  rests  unequally,  those  who  are  wronged  by 
this  action  are  entitled  to  remedy.  The  same  rule  applies 
if  property  is  undervalued,  whether  by  agreement  or  in  dis- 
regard of  official  duty.  If  the  extent  to  which  the  tax- 
payer has  been  injured  can  be  ascertained  that  sum  will  be 
deducted  from  his  taxes60.  Those  who  execute  the  tax 
laws  may  not  deliberately  and  knowingly  disregard  them 
and  assess  the  whole  tax  upon  a  part  only  of  those  who  are 
liable  to  pay  it.  That  would  be  placing  the  citizen  at  the 
mercy  of  those  officers,  who  by  b^ing  appointed  to  execute 
the  laws,  would  thereby  be  placed  beyond  legal  control81. 

59.  French      v.      South      Arm  taxes    in    the   other   townships   in 
Twp.,  122  Mich.  593.  that  country.     Auditor  General  v. 

60.  In      Auditor      General      v.  Pioneer   Iron   Co.,    123   Mch.  521. 
Jenkinson,   90    Mich.    523,    certain  61.     Walsh    v.    King,    74    Mich, 
vessel    property    in    Port    Huron  350.     In   this   case   an    injunction 
was  assessed  at  10%  of  its  value.  was  sustained,  the  money  having 
Merrill    v.    Humphrey,    24    Mich.  been    paid    into    court,    upon    the 
170 ;  Walsh  v.  King,  74  Mich.  350 ;  theory  that  the  illegal  tax  created 
In   Solomon   v.   Oscoda   Twp.   77  a    cloud    upon    title.      Weeks    v. 
Mich.    365,    $300,000.00    worth    of  Milwaukee,  10  Wis.  264 ;  Traverse 
property  was  not  assessed  at  all,  Beach   Ass'n    v.    Elmwood   Twp., 
by  agreement.     Held,  that  where  142  Mich.  178;  Bank  v.  Kimball, 
it    was    impossible    to    show    the  103  U.  S.  735;  Lingle  v.  Elmwood 
damages    suffered,   the   tax   payer  Twp.,  142  Mich.  194.    In  Attorney 
could  recover  his  entire  tax.     In  General    v.    Sanilac    Supervisors, 
Auditor    General    v.    Prescott,    94  42     Mich.     72,     it     is     held     that 
Mich.    191,    it    is    held    that    the  petitions  from  a  township  to  re- 
omission   of   $800,000.00   of   valu-  duce    valuations    should     not    be 
ation  from  the  roll  of  a  township  noticed. 

invalidates    the    state    and    county 


T27  LOCUS,  DESCRIPTION,  VALUATION 

A  change  of  valuations  as  fixed  by  the  board,  if  not  inten- 
tionally or  fradulently  made,  will  not,  however,  vitiate  the 
roll6*.  For  fraud  of  the  supervisor,  committed  lx?fore  the 
meeting  of  the  board  of  review,  the  board  is  the  consti- 
tuted tribunal  to  redress  the  wrong.  The  taxpayer  cannot 
ignore  the  tribunal  established  for  the  very  purpose  of 
correcting  such  evils,  and  bring  his  action  at  la\vfl '.  Where 
the  supervisor,  after  notice,  assesses  property  to  a  person, 
which  he  does  not  own,  he  may  recover  the  tax  so  paid 
without  having  appeared  before  the  board  of  review04. 
The  supervisor  cannot  place  property  upon  the  roll  after 
the  board  of  review  have  adjourned  because  that  would 
give  the  owner  no  opportunity  of  being  heard  on  a  review 
of  his  assessments68.  The  mere  fact  that  assessable  prop- 
erty is  omitted  does  not  vitiate  the  taxes,  since  it  will  be 
presumed  either  that  the  law  exempted  the  property,  or 
that  it  was  worthless66.  Where,  by  mistake,  the  omitted 
property  is  upon  the,  wrong  roll,  as  a  city  tax  upon  a  state 
and  county  roll,  such  tax  is  invalid.  Not  only  are  the  war- 
rants different,  but  a  city  tax  becomes  a  lien  in  November, 
and  a  state  or  county  tax  becomes  a  lien  in  December67. 

§93.     Valuation.    Dollar  Marks. 

Where  an  inspection  of  the  roll  shows  that  the  figures 

62.  See    "Certifying    taxes    to  Mich.    56,    where    the    owner    of 
township."     White    v.    Millbrook  standing  timber  was  also  assessed 
Twp.,  60  Mich.  532.  for  the  soil. 

63.  Traverse    Beach    Ass'n    v.  65.     Maurer   v.    Cliff.   94   Mich. 
Elmwood     Twp.,     142    Mich.     78.  194. 

Caledonia  Twp.  v.  Rose,  94  Mich.  66.     Perkins      v.      Nugent,     45 

216;    Hinds    v.    Belvedere    Twp.,  Mich.  156. 

107  Mich.  664.  67.    Folkerts     v.     Powers,     42 

64.  Ward    v.    Echo    Twp.,    145  Mich.  2"3. 


§93 


THE  LAW  OF  TAXATION 


128 


representing  valuation  were  intended  for  dollars  a  roll  will 
not  be  held  invalid  for  the  lack  of  a  dollar  mark  or  sign98. 


68.  Bird  v.  Perkins,  33  Mich. 
28-  Gaboon  v.  Coe,  52  N.  H.  518, 
524;  State  v.  Eureka  Co.,  8  Nev. 
15.  In  First  National  Bank  v. 
St.  Joseph,  46  Mich.  526,  the ' 
figures  were  separated  by  a  red 
line,  to  which  line  no  attention 


was  paid.  Held,  that  all  of  the 
figures  represented  dollars.  In 
Auditor  General  v.  Sparrow,  116 
Mich.  574,  the  dollar  mark  was 
absent  in  the  equalization  and 
apportionment  of  taxes  by  the 
board  of  supervisors. 


CHAPTER  VI. 

BOARDS  OF  REVIEW,  SUPERVISORS,  AND 
STATE  TAX  COMMISSION 


94.  Functions  of 

95.  Notice  of  Action  of 

96.  Review  of  Action  of 

97.  Review  of  State  Tax  Commission. 

98.  Time  of  Meeting. 

99.  Powers  of  Board  of  Review. 
§100.  Certificate   on   Roll. 

5101.  Signatures  on  Roll  and  Certificate. 

5102.  Collateral  Attack  of  Certificate. 

8103.  Board  of  Supervisors. 

8104.  Certifying  Taxes  to  Board  of  Supervisors. 
§105.  Re-assessment  of  Taxes. 

§106.  Equalization  of  Counties. 

§107.  Record  of  Equalization. 

§108.  Effect  of  Equalization  on  Townships. 

§109.  Certificate  of  Equalization. 

§110.  State  Taxes. 

§111.  State  Tax  Commission. 

§112.  State  Tax   Commission.     Power  of 

§113.  Apointment  of  State  Tax  Commission. 

CROSS-REFERENCES. 

Agricultural  Society  Tax,  §134.  Board  of  Review  on  Drains, 
§284.  Board  of  Supervisors  and  Drain  Tax,  §286.  Equity  Juris- 
diction over  Drain  Tax,  §430.  Equity  Jurisdiction  over  Special 
Assessment,  §431.  Highway  tax  and  board  of  supervisors,  §126, 
Mandamus,  §417.  Mistake  in  Drain  Tax,  §283.  Review  of  Special 
Assessment,  §355.  Supervisor  and  Drain  Tax,  §287. 


§94.     Functions. 

The  plain  purpose  of  this  body  is  to  review  the  action  of 
the  supervisor,  and  correct  errors  he  may  have  made.  It 
cannot  be  presumed  that  the  assessor  has  personal  knowledge 
of  the  private  business  of  the  person  assessed  unless  they 
choose  to  give  it.  The  statute  provides  for  giving  every 


THE  LAW  OF  TAXATION 


130 


person  an  opportunity  to  furnish  a  list  of  his  property,  and 
also  provides  the  further  opportunity  to  object  to  the  correct- 
ness of  the  assessment.  If  a  tax  payer  does  not  see  fit  to 
have  his  assessment  corrected  when  it  is  in  his  power  to  do 
so,  it  will  be  assumed  that  his  assessment  is  correct.  He 
cannot  thereafter  complain  of  excessive  valuation,  or  of  lack 
of  deductions  to  which  he  might  have  been  entitled1,  except 
for  fraud2.  A  tax  payer,  however,  has  a  right  to  presume 


1.  C.  L.,  '97,  $§3851-56;  First 
National  Bank  v.  St.  Joseph, 
4«  Mich.  531.  In  Comstpck 
v.  Grand  Rapids,  54  Mich. 
641,  666,  plaintiff  claimed  he 
was  over-assessed  by  the  super- 
visor, but  did  not  appeal  to  the 
board.  The  court  says:  "If  the 
assessment  had  been  made  of 
the  goods,  wares,  etc.,  in  one 
gross  sum,  without  any  specifi- 
cation of  particulars,  there 
could  have  been  no  question 
whatever  that  the  assessment 
would  have  been  valid,  and  that 
the  nlaintiff,  in  order  to  obtain 
relief  from  any  portion  thereof, 
must  have  appealed  to  the 
board  of  review  as  provided  by 
statute.  *  *  *  The  plaintiff 
knew,  or  was  bound  to  know, 
that  the  law  required  that  he 
should  be  taxed  for  personal 
property  in  the  First  Ward  of 
the  city,  and  he,  therefore,  had 
constructive  notice  of  the  as- 
sessement  actually  made,  and 
should  have  appealed  in  respect 
to  any  part  of  it  of  which  he 
could  justly  complain."  In 
Hamilton  v.  Ames,  74  Mich. 
298,  it  is  held  that  an  assignee 
of  a  lessee  chargeable  with 
taxes,  cannot  complain  of  an 
excessive  valuation  where  the 
lessee  appeared  before  the  board 
prior  to  his  assignment  of  the 
lease  and  expressed  himself  as 
satisfied. 


2.  In  Peninsular  Iron  Co.  v. 
Crystal  Falls  Twp.,  60  Mich. 
510,  517,  the  supervisor  did  not 
have  time  to  examine  all  of  the 
lands,  in  two  surveyed  town- 
ships, though  he  had  been 
through  them  before.  Follow- 
ing Sawyer-Goodman  Co.  v. 
Crystal  Falls  Twp.,  56  Mich. 
599.  it  is  held  unnecessary  that 
the  supervisor  personally  in- 
spect every  piece  of  land,  and 
that  if  there  was  an  inequality 
it  could  have  been  remedied  by 
the  board,  on  appeal.  The 
Court  says:  "If  there  was  any 
inequality  in  the  assessment 
against  plaintiff's  lands,  by  fail- 
ing to  present  its  case  before 
th->.  board  of  review,  the  proper 
tribunal  for  adjusting  such  mat- 
ters, it  has  lost  the  right  to 
assail  the  assessment  in  the 
courts,  unless  it  can  be  shown 
that  the  supervisor  or  the 
board  of  review  acted  fraudu- 
lently, or  some  misconduct  on 
the  part  of  the  supervisor 
amounting  to  fraud  in  law. 
In  Meade  v.  Haines,  81  Mich. 
261,  265,  all  taxpayers  of  Thom- 
aston  Township  were  entitled 
to  cross  a  certain  toll  bridge 
free.  Plaintiff  purchased  on 
contract  two  acres  of  land  in 
that  township  and  demanded  to 
be  passed  free  over  that  bridge. 
The  supervisor  refused  to  issue 
a  certificate  to  him  to  cross  the 
bridge  free,  and  assess  the  land 


131 


BOARDS  OF  REVIEW,  SUPERVISORS,  ETC. 


§94 


that  his  property  will  be  assessed  in  its  proper  locality,  and 
is  not  bound  to  examine  rolls  where  he  has  no  property,  nor 
to  examine  any  roll  for  a  tax  which  the  assessing  officer 
would  not  have  jurisdiction  to  levy3.  Although  the  board  is 


to  the  ver>4ee  in  the  contract. 
In  an  action  against  the  super- 
visor to  recover  toll  paid  by 
plaintiff,  it  was  held  that  as  the 
supervisor  acted  in  good  faith, 
plaintiff  was  barred  from  com- 
plaining because  he  had  not  ap- 
pealed to  the  board  of  review. 
The  Court  says:  "This  board 
is  authorized  to  add  names  to 
the  roll,  to  correct  all  errors  in 
th*  names  of  persons,  and  to 
do  whatever  may  be  necessary 
to  make  the  roll  comply  with 
the  provisions  of  the  law.  The 
plaintiff  did  not  appear  before 
this  board,  nor  in  any  manner 
avail  himself  of  its  provisions, 
to  correct  the  alleged  erroneous 
assessment.  This  is  a  com- 
plete bar  to  his  recovery  here 
even  if  he  could  otherwise 
maintain  his  suit."  In  Brown 
v.  Grand  Rapids,  83  Mich.  101, 
109,  complainant  claimed  that 
a  special  assessment  district 
omitted  lands  benefited  by  the 
proposed  improvement.  He  did 
not  appear  either  before  the 
council  or  board  to  object.  The 
Court  says:  "He  did  not  ap- 
pear, and  does  not  pretend  that 
he  made  any  effort  to  have  the 
assessment  corrected  before  the 
council.  The  determination  of 
these  two  bodies,  the  commis- 
sioners who  made  the  assess- 
ment roll,  and  the  common 
council  of  the  city  of  Grand 
Rapids,  cannot  now  be  inquired 
into,  unless  it  appears  that  they 
acted  in  bad  faith.  *  *  * 
Where  provision  is  made  by 
law  for  a  review  of  assessment 
proceedings,  and  a  body  ap- 


pointed with  the  power  to  set 
the  assessment  aside  or  correct 
the  error  complained  of,  and 
the  party  wholly  fails  to  ap- 
pear before  such  body,  or  take 
any  steps  to  have  such  correc- 
tion made,  he  is  not  in  a  posi- 
tion to  appeal  to  the  courts  for 
redress  in  the  absence  of  fraud 
or  bad  faith."  In  Mich.  Sav- 
ings Bank  vs.  Detroit,  107 
Mich.  246,  it  is  held,  where  the 
1'ank  had  not  requested  the 
board  of  review  to  deduct  cer- 
tain real  estate  mortgages  from 
its  capital  stock,  that  an  action 
would  not  lie  against  the  mu- 
nicipality to  recover  back  the 
excessive  tax. 

The  same  principle  is  enun- 
ciated in  Detroit  River  Savings 
Bank  v.  Detroit,  114  Mich.  81. 
In  Hinds  v.  Belvidere,  107 
Mich.  664,  it  is  held  that  the 
taxpayer  cannot  complain  of 
anything  that  the  board  of  re- 
view could  have  remedied  had 
he  made  application.  In  Grat- 
wick  Lumber  Co.  v.  Oscoda,  97 
Mich.  221,  it  is  held  that  a  tax- 
payer who  appears  before  the 
board  cannot  object  because 
tax  statements  were  not  fur- 
nished him.  See  also  Williams 
v.  Saginaw,  51  Mich.  120;  Ja- 
cobs v.  Detroit.  145  Mich.  395. 
The  taxpayer  is  not  precluded 
from  appealing  to  the  courts 
when  there  has  been  fraud  in 
over-valuing  the  property.  See 
589. 

:?.  McCoy  v.  Anderson,  47 
Mich.  502,  holding  that  replevin 
of  the  property  seized  for  the 
tax  will  He  where  plaintiff  was 


THE  LAW  OF  TAXATION 


132 


required  to  keep  a  record  of  its  proceedings  under  C.  L. 
§3856,  yet  its  failure  to  do  so  will  not  avoid  a  tax  where  no 
injury  resulted  therefrom4.  It  is  the  function  of  the  board 
of  review  to  hear  objections  to  the  roll  as  prepared  by  the 
supervisor;  and  in  general,  if  a  tax  payer  does  not  appear 
and  make  his  objections  known,  and  give  the  board  an  oppor- 
tunity to  remedy  the  illegalities  or  wrongs,  he  cannot  there- 
after bring  his  suit5.  Where  the  interests  of  several  owners 
are  incorrectly  described,  they  cannot  object  unless  they 
appeared  before  the  board  and  asked  its  correction8. 

§95.     Notice  of  Action. 

The  general  tax  law  furnishes  very  full  means  to  the 
assessing  officer  for  getting  at  the  correct  basis  of  a  true 


assessed  in  a  township  where 
he  did  not  live,  and  had  no 
property  therein. 

In  Brooks  v.  Arenac  Twp.,  71 
Mich.  231,  233,  logs  of  a  non- 
resident, while  in  transit,  were 
assessed  in  a  township  where 
the  owner  had  no  other  prop- 
erty. In  holding  that,  in  such 
a  case,  it  was  unnecessary  to 
appear  before  the  board  of  de- 
fendant township,  the  Court 
says:  "This  section  does  not 
contemplate  that  the  owner, 
who  may  be  a  non-resident  of 
the  state  as  well  as  of  the 
county  or  township,  must  ap- 
pear in  person  in  all  parts  of 
the  state  where  his  logs  may  be 
in  transit,  at  the  day.  when 
their  liability  is  supposed  to  ac- 
crue in  each  township.  This 
would  be  manifestly  impracti- 
cable." The  rule  that  where  a 
taxpayer's  assessment  is  upon 
personal  property  not  subject 
to  taxation  at  the  place  where 
the  property  is  taxed,  the  courts 
may  review  it  though  the  owner 
has  not  appeared  before  the 


board  of  review,  is  well  set- 
tled: Nester  v.  Baraga  Twp., 
133  Mich.  640;  Detroit  v.  Circuit 
Judge,  127  Mich.  604;  Wood- 
mere  Cemetery  Ass'n  v.  Spring- 
wells  Twp.,  130  Mich.  466;  De- 
troit v.  Mackinaw  Trans.  Co., 
140  Mich.  174,  holding  that  it  is 
unnecessary  to  appear  before  a 
board  of  review  to  contest  a 
tax  levied  under  an  unconstitu- 
tional law,  followed  by  Ports- 
mouth Twp.  v.  Cranage  Steam- 
ship Co.,  148  Mich.  230,  and 
Rice  v.  Muskegon,  150  Mich. 
679.  See  also.  Bemis  v.  Boston, 
14  Allen  366;  Fairbanks  v.  Kit- 
tridge,  24  Vt.  9;  Charlestown 
v.  Com'rs,  109  Mass.  270;  Jud- 
kins  v.  Reed,  48  Me.  386. 

4.  Auditor   General   v.    Buck- 
eye   Iron    Co.,   132    Mich.    554. 

5.  In  addition  to  the  forego- 
ing  cases,    see    Traverse    Beach 
Ass'n    v.     Elmwood    Twp.,    142 
Mich.    78    and    297;    Latham    v. 
Assessors,    91    Mich.    506. 

6.  Detroit      v.      Jacobs,      145 
Mich.    395. 


!:;:l  BOARDS  OF   KKVIKW.   SLI'KKVISORS,   K  .  §95 

assessment.  It  requires  him  to  make  an  investigation  and 
hear  evidence  if  it  be  offered,  and  the  final  determinati  ui 
cannot  be  made  until  such  opportunity  is  given.  X<>  one  has 
any  occasion  to  make  a  showing  until  an  <M-  /></;/<•  finding 
has  been  made  which  he  deems  wrongful.  Under  the  gen- 
eral tax  law  there  can  be  no  charge  made  prejudicial  to  the 
tax  payer  after  the  roll  has  been  made  up  for  review,  with- 
out notice,  and  the  tax  payer  may  therefore  rest  upon  it  as 
left  by  the  supervisor7.  After  the  board  of  review  has  once 
acted  upon  an  assessment  and  reduced  it,  it  cannot  thereafter 
raise  the  assessment  without  notice  to  the  tax  payer.  It 
cannot  be  supposed  that  the  legislature  ever  intended  to  go 
so  far  beyond  their  constitutional  power  as  to  leave  the  tax 
payer  at  the  uncontrolled  mercy  of  the  board  of  review  as  to 
permit  it  to  make  and  unmake  assessments  at  pleasure.  The 
right  to  be  heard  upon  the  valuation  would  be  nugatory  if 
the  board,  after  giving  a  party  the  redress  he  is  entitled  to, 
and  leaving  him  satisfied  with  their  conclusion,  could  then 
turn  around  and  undo  their  judgment,  placing  him  where  he 
was  before  he  made  his  complaint.  This  is  plain  excess  of 
jurisdiction,  which  is  as  fatal  in  taxation  as  anywhere  else, 
and  if  not  so  held,  would  leave  taxation  unchecked  and 
arbitrary8. 

7.  Avery  v.  East  Saginaw,  44  Mich.    507.      In    Auditor    General 
Mich.    587;    Monroe   Water    Co.  v.   Sessions,   100   Mich.   343,   the 
v.  Frenchtown,  98  Mich.  431.     In  charter    of    Muskegon    provided 
Dool    v.     Cassopolis,    42    Mich.  that  the  board  of  review  should 
547,   where   the  village  levied  a  not     increase    any     assessment 
special  saloon  tax  by  ordinance,  after   the   first    five   days.     Held 
it   is   held   that  a  notice   of  the  that  an  increase  after  that  time 
review    of    such    tax    should    be  was    invalid.      In    Woodman    v. 
given,  or  it  would  be  invalid.  Auditor    General,    52    Mich.    28, 

8.  Phillips     v.    New    Buffalo  it  is  held  that  if  the  roll  is  not 
Twp.,  64  Mich.  683;  Griswold  v.  ready    for    review    at    the    time 
Ray    City,  24    Mich.   265;    Audi-  specified   by  statute,  all   assess- 
tor   General   v.   Stiles,   83   Mich.  ments  added  thereafter  are  void. 
460;  Three  Rivers  v.   Smith,  99  In    Albany,  etc.,   Mining  Co.   T. 


§  95  THE  LAW  OF  TAXATION  134 

Statutory  Provisions. 

C  L.  "97,  §§3851-3856.  §3852  provides:  "On  the 
Tuesday  next  following  the  third  Monday  in  May,  the 
board  of  review  of  each  township  shall  meet  at  the 
office  of  the  supervisor;  at  which  time  the  supervisor 
shall  submit  to  said  board  the  assessment  roll  for  the 
current  year,  as  prepared  by  him,  and  the  said  board 
shall  proceed  to  examine  and  review  the  same,  and 
during  that  day,  and  the  day  following  if  necessary,  said 
board  of  its  own  motion,  or  on  sufficient  cause  being 
shown  by  any  person,  shall  add  to  said  roll  the  names 
of  persons,  the  value  of  personal  property,  and  the 
description  and  value  of  real  property  liable  to  assess- 
ment in  said  township,  omitted  from  such  assessmeni 
roll ;  they  shall  correct  all  errors  in  the  names  of 
persons,  in  the  descriptions  of  property  upon  such  roll, 
and  in  the  assessment  and  valuation  of  property  there- 
on and  they  shall  cause  to  be  done  whatever  else  may 
be  necessary  to  make  said  roll  comply  with  the  pro- 
visions of  this  act.  The  board  shall  pass  upon  each 
valuation  and  each  interest,  and  shall  enter  the  valuation 
of  each,  as  fixed  by  it,  in  a  separate  column.  The  roll 
as  prepared  by  the  supervisor  shall  stand  as  approved 
and  adopted  as  the  act  of  the  board  of  review,  except 
as  changed  by  a  vote  as  herein  provided.  If  for  any 
cause  a  quorum  does  not  assemble  during  the  days 
above  mentioned,  the  roll  as  prepared  by  the  supervisor 
shall  stand  as  if  approved  by  the  board  of  review." 

Auditor    General,    47    Mich.    391,  after  the  time  fixed  by  law,  the 

where    the     supervisors     changed  tax   was   sustained;   there  'being 

his    roll   of    the    preceding   year  no    allegation    of    excessive    as- 

and    made    it    the    original    roll,  sessment  or  lack  of  opportunity 

and    the     same     was     reviewed  to  review  the   roll. 


135  BOARDS  OF  REVIEW,  SUPERVISORS,  ETC.  §  96 

C.  L.  '97,  §3853  provides:  "Said  board  of  review 
t  shall  also  meet  at  the  office  of  the  supervisor  on  the 
fourth  Monday  in  May  at  nine  o'clock  in  the  forenoon, 
and  continue  in  session  during  the  day  and  the  day 
following.  Such  board  shall  continue  its  sessions  at 
least  six  hours  each  day,  and  at  the  request  of  any 
person  whose  property  is  assessed  thereon  or  o.f  his 
agent,  and  on  sufficient  cause  being  shown,  shall  correct 
the  assessment  as  to  such  property,  in  such  manner  as  in 
their  judgment  will  make  the  valuation  thereof  relative- 
ly just  and  equal.  *  *  *"  It  further  provides  for 
the  examination  of  persons  on  oath. 

C.  L.  '97,  §3854,  provides :  "Upon  the  completion  of 
said  roll  and  its  endorsement  in  manner  aforesaid,  the 
same  shall  be  conclusively  presumed  by  all  courts  and 
tribunals  to  be  valid,  and  shall  not  be  set  aside  except 
for  causes  hereinafter  mentioned.  The  omission  of 
such  endorsement  shall  not  affect  the  validity  of  such 
roll." 

C.  L.  '97,  §3855,  provides  that  if  the  board  does  not 
meet  on  the  Monday  specified,  then  it  shall  meet  on  the 
next  Monday  thereafter. 

Where  the  statute  required  notice  to  be  given  of  meetings 
of  the  board,  and  there  is  no  record  of  such  notice  being 
given,  the  burden  of  proving  lack  of  notice  is  upon  the  tax 
payer,  by  reason  of  the  healing  statute ;  and  if  the  tax  payer 
had  actual  notice  thereof  he  would  not  be  injured  in  any 
event9. 

§96.     Review  of  Action  of, 

In  the  absence  of  fraud  or  wilful  violation  of  duty,  the 

9.  Boyce  v.  Peterson,  84  of  Public  Acts  of  1889;  H.  S. 
Mich.  490;  985  of  Act  105  {2930. 


§06 


THE  LAW  OF  TAXATION 


136 


courts  will  nqt  review  the  action  of  the  board  of  review. 
The  ascertainment  of  the  value  of  taxable  property  is  judicial 
and  requires  the  judgment  of  the  assessor  under  his  official 
oath.  The  same  is  true  of  the  board  of  review.  The  law 
imposes  this  duty  upon  those  officers ;  and  if  they  act  in  good 
faith,  and  exercise  their  best  judgment,  mere  errors  in 
judgment  will  not  defeat  their  action10.  It  is  undoubtedly 
the  law  that  inequalities  in  valuation,  fixed  by  design,  or 
effected  by  assessment,  cupidity,  or  malice,  so  that  the 
exercise  of  proper  judgment  has  been  departed  from, 
renders  an  assessment  void11.  A  tax  based  upon  a 


10.  For      estoppel,      see      §94 
supra.     Pioneer  Iron  Co.  v.  Ne- 
gaunee.    116    Mich.    430;    Same 
principle  in   McDonald  v.  Esca- 
naba.    62    Mich.    555;    Attorney 
General   v.    Sanilac    Supervisors, 
42    Mich.    72;    Sawyer-Goodman 
Co.    v.    Crystal    Falls    Twp.,    56 
Mich.     597;     In     Muskegon     v. 
Boyce,  123  Mich.  535,  it  is  held 
that    the    mere    fact    that    some 
property  was  undervalued  is  not 
sufficient   to   set   aside   the   tax. 
It    must     further     appear     that 
such  action  was  intentional,  and 
that      the    person      complaining 
was  injured,  Williams  v.  Mears, 
61   Mich.   86;   Williams  v.   Sagi- 
naw,  51  Mich.  120;  In  Comstock 
v.   Grand   Rapids,   54  Mich.  641, 
the  same  personal  property  was 
assessed     in     two     wards,      as 
freight  cars:   Caledonia  Twp.  v. 
Rose.   94    Mich.   216;    First    Na- 
tional Bank  v.  St.  Joseph  Twp.. 
46   Mich.   526. 

11.  In    Pioneer    Iron    Co.    v. 
Negaunee,    116    Mich.    430,    435, 
it    is    held    that    extending    city 
limits   and    so   increasing  taxes, 
is     not     fraudulent.       Merrill    v. 
Humphrey,    24    Mich.    170;    Au- 
rora   Iron    Co.    v.    Ironwood,    119 


Mich.  325.  In  Auditor  General 
v.  Ayer,  122  Mich.  136,  it  is  held 
that  no  valid  arrangement  could 
be  made  by  which  a  half  of  a 
township  could  be  assessed  at  a 
uniform  rate.  In  Auditor  Gen- 
eral v.  Sparrow,  116  Mich.  574, 
590,  where  the  board  of  review 
made  sweeping  changes,  ex 
parte.  at  their  second  meeting, 
it  is  held  to  invalidate  the  taxes 
of  the  township.  So,  the  addi- 
tion of  lands  at  such  second 
meeting,  ex  parte,  is  illegal  and 
the  taxes  assessed  thereon  are 
invalid.  In  Mitchell  v.  Negau- 
nee, 113  Mich.  359,  it  is  held 
that  vacant  portions  within  the 
city  limits  may  be  assessed  for 
a  water  tax  though  they  receive 
no  benefit  from  the  water 
works.  In  Solomon  v.  Oscoda 
Twp.,  77  Mich.  366,  it  is  held 
that  an  agreement  between  the 
supervisor  and  board  of  review, 
by  which  a  certain  class  of 
property  was  very  much  under- 
valued, vitiated  the  tax.  Same 
in  Auditor  General  v.  Jenkin- 
son,  90  Mich.  523;  Auditor  Gen- 
eral v.  Prescott,  94  Mich.  190; 
Auditor  General  v.  Pioneer  Iron 
Co..  123  Mich.  521. 


1  ;;  BOARDS  OF  REVIEW,  SUPERVISORS,  ETC. 

fraudulent  assessment  will  be  enjoined.  An  assessment  is 
not  fraudulent  merely  because  of  l>eing  excessive  if  the 
officers  have  not  acted  from  an  improper  motive;  but  if  it  is 
purposely  made  too  high,  either  through  prejudice  or  reck- 
less disregard  of  duty,  in  opposition  to  what  must  necessarily 
be  the  judgment  of  all  competent  persons,  or  through  the 
adoption  of  a  rule  which  is  designed  to  operate  unequally 
upon  a  class,  and  to  violate  the  constitutional  rule  of  uni- 
formity, the  case  is  a  plain  one  for  the  equitable  remedy  by 
injunction.  So  in  any  case  in  which  a  tax  is  rendered  un- 
equal or  unfair  by  fraudulent  or  reckless  conduct  of  officers, 
or  in  which  the  party  is  deprived  by  like  practices  of  im- 
portant rights  which  the  law  intends  to  secure  to  him ;  such, 
for  instance,  as  the  right  of  an  appeal  from  an  assessment, 
or  to  be  heard  by  the  board  of  review,  before  his  assessment 
should  be  raised12. 

§97.     Review  by  State  Tax  Commission. 

This  commission,  under  the  statute,  have  the  power  to 
review  and  change  the  valuations  of  either  a  local  or  state 
board,  as  circumstances  may  require.  Such  a  power  is  not 
unconstitutional.  The  local  assessing  officer  is  bound  by 
their  decision,  and  cannot  refuse  to  accept  it  because  in  his 
opinion  such  action  is  illegal13.  Under  some  charter  pro- 
visions, the  tax  commission  cannot  change  the  apportionment 

12.     Pioneer   Iron   Co.  v.   Ne-  Tax        Commissioners.         This 

gaunee.    116     Mich.     430,     43T,  board    has    general    supervision 

quoting  from  Judge  Cooley.  In  of  the  supervisors  and  assessing 

Perkins    v.    Nugent,     45     Mich.  officers  of  the  state,  with  plen- 

156,   and    in    Drennan   v.    Beier-  ary    powers    to    review    assess- 

lein.    48    Mich.    272,    it    is    held  ments  and  assessment  rolls, 
that    the    fraud    complained    of          13.     State      Tax      Com'rs      v. 

must  be  clearly  established.  Quinn,  125  M.ich.  128;  State  Tax 

Act  154  of  the  Public  Acts  of  Com'rs  v.  Assessors,  124  Mich. 

1899    f§§145-154    of    Tax    Law),  489. 
creates     the     Board      of      State 


§  97  THE  LAW  OF  TAXATION  138 

between  the  wards  of  a  city,  but  it  may  change  the  individual 
assessments,  and  may  add  to  the  rolls  property  and  persons 
omitted.  It  may  review  the  action  of  the  local  board  of 
review  after  their  adjournment,  notice  of  which  is  to  be 
given  by  publication.  The  commission,  however,  have  no 
power  to  adjourn  without  notice;  and  action  taken  at  such 
adjourned  day  without  notice  to  the  parties  in  interest  will 
be  void14.  Where  the  board  gives  notice  of  a  review  at  a 
specified  date,  and  makes  adjournments  of  which  no  record 
is  made,  the  only  proof  of  which  was  parol  evidence,  the 
action  of  the  board  in  raising  assessments  is  void  for  un- 
certainty15. A  published  notice  of  the  meeting  of  the  com- 
mission, for  five  days,  including  date  of  publication  and  date 
of  meeting,  is  void16. 

Statutory  Provision. 

Act  No.  5  of  Public  Acts  of  1909,  provides :  "After 
the  various  assessment  rolls  required  to  be  made  under 
this  act  shall  have  been  passed  upon  by  the  several 
boards  of  review,  and  prior  to  the  meeting  of  the 
board  of  supervisors  each  year,  the  said  several  assess- 
ment rolls  in  the  state  shall  be  subject  to  inspection 
by  said  board  of  tax  commissioners,  or  by  any  mem- 
ber thereof;  and  in  case  it  shall  appear,  or  be  made 
to  appear,  by  written  complaint  of  any  taxpayer  to 
said  board  that  property  subject  to  taxation  has  been 
omitted  from  said  roll,  or  individual  assessments  have 
not  been  made  in  compliance  with  law,  the  said  board 
may  issue  an  order,  directing  the  assessor  whose  assess- 
ment or  failure  to  assess  is  complained  of,  to  appear 
with  his  assessment  roll  at  a  time  and  place  to  be 

14.  Bialy    v.    Bay    City,    139       397. 

Mich.  495.  16.     Port    Huron    v.    Wright, 

15.  Delray      Land      Co.      Y.      150  Mich.  279. 
Springwells     T\vp.,     149     Mich. 


139  BOARDS  OF  REVIEW,  SUPERVISORS,   ETC.  i  !»* 

stated  in  said  order,  said  time  to  be  not  less  than 
seven  days  from  the  date  of  the  issuance  of  said  order, 
and  the  place  to  be  at  the  office  of  the  board  of  super- 
visors at  the  county  seat,  or  at  such  other  place  in 
in  said  county  in  which  said  roll  was  made,  as  said 
board  shall  deem  most  convenient  for  the  hearing 
herein  provided."  The  act  requires  notice  of  the  meet- 
ing to  be  given.  The  board  or  any  member  of  the 
board,  is  authorized  to  review  the  roll,  make  true  and 
lawful  assessments  of  the  property  complained  of,  and 
add  omitted  property  to  the  assessment  roll. 

§98.     Time  of  Meeting. 

The  statute  fixes  the  time  when  the  board  shall  meet ;  and 
this  is  notice  to  the  tax  payers.  This  is  mandatory,  because 
the  tax  payer  must  be  allowed,  at  some  time  before  the  roll 
is  completed,  the  opportunity  of  seeing  what  assessments 
have  been  made  against  his  property,  and  the  privilege  of 
showing  that  the  proposed  assessment  is  illegal  and  unjust. 
This  right  of  review  is  also  true  of  the  action  of  the  super- 
visor17. 

If  a  party  is  injured  by  the  placing  of  property  on  the  roll 
after  the  time  fixed  for  review,  the  act  renders  the  tax  in- 
valid ;  but  if  the  tax  payer  makes  no  effort  to  examine  his 
tax,  and  does  not  claim  he  is  injured  by  such  action,  the 
mere  irregularity  itself  will  not  vitiate  the  tax18. 

17.     Woodman       v.      Auditor  day,  the  review  was  good. 
General.    52    Mich.    28;    Auditor          18.     Albany,  etc.,   Mining  Co. 

General   v.   Chandler,  108   Mich.  v.    Auditor    General,    37     Mich. 

569.       In     Wright    v.    Auditor  391.     In      Caledonia      Twp.      v. 

General.    118    Mich.    556,    it    is  Rose.   94    Mich.   216,   the   board 

held   that  where  a  quorum  was  adjourned  before  the  time  fixed 

not    orcsent    on    the    first    day,  by  statute,  and  a  taxpayer  was 

and  in  fact  no  officer,  yet  if  the  thereby   deprived   of  a   hearing. 

was   in   session   the   next  H*ld  that  his  tax  was  void. 


§§  99,  100  THE  LAW  OF  TAXATION  140 

§99.     Powers. 

A  tax  payer  has  the  right  to  make  a  showing  by  affidavit, 
and  the  board  cannot  refuse  to  receive  the  proofs  thus 
tendered  them.  The  board  has  the  power  to  pass  upon  these 
proofs  and  to  declare  them  insufficient  if  good  reason  exists 
for  such  finding;  but  they  have  no  right  to  reject  the  proofs 
without  examining  them,  nor  to  impose  as  a  condition  of 
such  an  examination  that  the  affiant  appear  personally  before 
the  board  and  submit  to  an  oral  examination19. 

§100.     Certificate  on  Roll. 

The  certificate  on  the  roll  must  show  that  the  statute  has 
been  complied  with.  A  certificate  that  property  had  been 
assessed  at  its  "true  value,"  instead  of  its  "true  cash  value," 
is  fatal  to  the  tax20. 

Statutory  Provisions. 

C.  L.  '97,  §3847  as  amended  by  Act  262  of  the 
Public  Acts  of  1899,  provides :  "The  supervisor  shall 
estimate,  according  to  best  information  and  judgment, 
the  true  cash  value  of  every  parcel  of  real  property  and 
set  the  same  down  opposite  each  parcel.  He  shall  also 

• 

19.     McMorran  v.  Wright,  74  that  under  the  Bay  City  charter 

Mich.  356.    In  Thompson  v.  De-  (1872),     the    board     could     not 

troit,   114    Mich.   502,   it   is   held  change    valuations    except   upon 

that  the  council,  as  a  board  of  the    application    of    a    taxpayer 

review,    cannot    confirm    an    as-  concerned.     In  Auditor  General 

sessment  roll  unless  the  same  is  v.  Sparrow,  116  Mich.  574,  it  is 

certified   to   them  by  the  asses-  held  that  the  board  cannot  add 

sors.      In    Ball    v.    Copper    Co.,  to.    or    change,    the    roll    on    its 

118    Mich.    7,    it     is     held     that  own  motion  after  the  time  fixed 

where     the     board     makes     no  by  the  statute, 
changes      in      valuations,      they          20.     Fay   v.    Wood,    65    Mich, 

need  not  write  in  the  valuations  391;   Hogelskamp   v.   Weeks,  37 

in    columns    prepared    for    that  Mich.  422;  Wattles  v.  Lapeer,  40 

purpose.      In    Griswold    v.    Bay  Mich.  624. 
City,    24    Mich.    262.    it    is    held 


141  BOARDS  OK  KHV1KW,  SUPERVISORS,  ETC.  §  100 

estimate  the  true  cash  value  of  all  the  personal  property 
of  each  person,  and  set  the  same  down  opposite  the  name 
of  such  person.  In  determining  the  property  to  be 
assessed  and  in  estimating  such  value,  he  shall  not  be 
bound  to(  follow  the  statements  of  any  person,  but  shall 
exercise  his  best  judgment." 

C.  L.  '97,  §3850,  provides :  "The  words  'cash  value.' 
whenever  used  in  this  act,  shall  Le  held  to  mean  the 
usual  selling  price  at  the  place  where  the  property  to 
which  the  term  is  applied  shall  be  at  the  time  of  assess- 
ment, being  the  price  which  could  be  obtained  therefor 
at  private  sale,  and  not  at  forced  or  auction  sale.  In 
determining  the  value  the  assessor  shall  also  consider 
the  advantages  and  disadvantages  of  location,  quality 
of  soil,  quantity  and  value  of  standing  timber,  water 
power  and  privileges,  mines,  minerals,  quarries  or  other 
valuable  deposits  known  to  be  available  therein  and 
their  value." 

When  the  statute  required  the  supervisor  to  certify  "that 
the  roll  contains  a  true  statement  of  the  aggregate  valuation" 
etc.,  a  statement  "that  he  had  set  down  the  real  estate  accord- 
ing to  his  best  information,"  was  held  not  fatal21.  Under 
the  same  statute,  the  certificate  stating  that  the  property  was 
assessed  at  its  true  cash  value,  but  omitted  the  words  "and 
nqt  at  the  price  it  would  sell  for  at  forced  or  auction  sale," 
the  assessment  was  held  void22.  But  although  the  statute 
may  require  the  supervisor  to  certify  his  roll  to  the  board  of 

21.  C.   L.   1871,  8991;   McCal-  v.  Millar,  64  Mich.  129;  Sinclair 
him  v.   Bethany  Twp.,  42  Mich.  v.    Larncd,    51     Mich.    335;    Gil- 
457.  christ    v.    Dean,    55    Mich.    244; 

22.  C.  L.  1871,  §991;  Daniels  Silsbee  v.  Stockle,  44  Mich.  561. 
v.    Watertown    Twp..    61    Mich.  In    Dickenson    v.    Reynolds,   48 
514;      Daniels     v.      Watertown  Mich.   158,  the  omission  of  the 
Twp..  55  Mich.  244;  Westbrook  word   "auction"  is   held  fatal. 


§  101  THE  LAW  OF  TAXATION 

review,  yet  if  he  is  a  member  of  the  board  and  presents  the 
roll,  no  certificate  is  necessary23.  It  should  appear  that  the 
supervisor  used  his  own  judgment  in  fixing  the  valuations24. 
The  addition  of  the  words,  "as  is  usual  among  assessors," 
renders  a  certificate  void25.  The  words,  "fixed  or  auction 
sale,"  instead  of  "forced  or  auction  sale,"  are  fatally 
defective26.  But  the  words  "forced  sale"  instead  of  "forced 
or  auction  sale,"  are  harmless27.  This  certificate  is  not  a 
part  of  the  collectors  roll  and  need  not  appear  thereon28. 
This  certificate  may  be  shown  by  the  roll  of  the  supervisor 
or  assessor29.  A  charter  provision  requiring  wild  and  un- 
improved lands  to  be  assessed  at  their  true  cash  value,  con- 
sidering their  location  and  not  according  to  their  prospective 
or  supposed  value  as  city  property  is  invalid30. 

§101.     Signatures  on  Roll  and  Certificate. 

The  date  of  the  certificate  is  not  important31.  Unless 
otherwise  provided,  a  majority  of  the  board  of  review  must 
sign  the  certificate32.  A  roll  not  signed  by  the  assessors  is 

23.  Darmstetter   v.   Moloney,  Mich.  318,  it  is  held  that  a  cer- 
45    Mich.   621.  tificate  on  the  collectors'  roll  is 

24.  Crooke   v.   Whiteford,   47  not   evidence    of   such   a  ccrtifi- 
Mich.  283;  §7,  Acts  67,  Laws  of  cate   on   the   supervisor's  roll. 
1845.  29.     Fells      v.      Barbour,       58 

25.  Kurd     v.     Raymond,      50  Mich.  49. 

Mich.  369;    Clark    v.    Crane,    5  30.     Saltonstall  v.    Cheboygan 

Mich.  151.  Board  of  Review,  132  Mich.  196. 

26.  Paldi   v.    Paldi,   84    Mich.  31.     Auditor  General  v.  Ayer, 
346.  122    Mich.     136;     Yelverton     v. 

27.  Blue    Mining   Co.   v.    Ne-  Steele,  36  Mich.  62. 

gaunee,  105  Mich.  317.  32.     In   Burt  v.   Auditor  Gen- 

28.  Tweed      v.      Metcalf,      4  eral.  39  Mich.  126,  it  is  held  that 
Mich.      579;      Hecock     v.     Van  in  the  absence  of  a  showing  of 
Dusan,   80  Mich.   359;   Boycc  v.  special  injury,  an  unsigned  cer- 
Sebring,      66      Mich.      210,    216;  tificate,    under    the     charter     of 
Clark    v.    Axford,    5    Mich.    182,  Marquette,    would    not    avoid    a 
187;    Bird   v.    Perkins,   33    Mich.  tax  in  equity. 

«8.      In    Redding    v.    Lamb,    81 


143  BOARDS  OF  REVIEW,  SUPERVISORS,  KTC.  ^    H)-> 

void  and  is  not  cured  by  their  signing  the  certificate'" ;  but 
this  was  not  true  under  the  earlier  law34,  nor  does  it  seem  to 
be  required  where  the  assessing  officer  is  a  member  of  the 
board  of  review,  as  the  reason  for  the  rule  fails35.  A  certifi- 
cate signed  by  a  majority  of  the  board  is  valid3" ;  but  when 
the  certificate  is  missing,  and  leaves  of  roll  are  missing,  there 
is  no  presumption  that  the  certificate  was  made  or  signed37, 
nor  will  a  sufficient  certificate  be  presumed  to  have  been  in 
existence  when  an  insufficient  one  was  found38.  Under  the 
charter  of  Detroit,  failure  of  the  board  of  assessors  to  sign 
the  roll  before  its  transmision  to  the  council,  renders  the 
levy  void39. 

§102.     Collateral  Attack  of  Certificate. 

The  policy  of  the  statutes,  and  of  the  courts,  is  not  to 
permit  a  collateral  attack  on  any  tax  certificate.  The  statute 
contemplates  that  there  shall  be  written  evidence  of  record, 
in  the  form  of  an  official  certificate,  that  the  estimate 
of  taxable  property  has  been  properly  made ;  and  when  such 
evidence  has  been  made  and  preserved  in  the  manner  pro- 
vided by  law,  it  is  the  legal  medium  of  proof  in  collateral 
proceedings,  and  is  entitled  to  prevail  therein  to  the  exclusion 
of  oral  evidence  in  contradiction40. 


33.  Sibley  v.   Smith,  2   Mich.  cate.  is  immaterial. 

487    (1853);    Detroit  v.   Thomp-  37.     Newkirk     v.     Fisher,     72 

son,  114  Mich.  502  (1897).  Mich.  115. 

34.  Lacey  v.   Davis,  4   Mich.  38.     Case   v.    Dean,    16    Mich. 
140  (under  law  of  1842).  12,    16. 

35.  Darmstetter   v.   Moloney,  39.     Lowe     v.      Detroit,     138 
45   Mich.   621    (1881).  Mich.  544,  following  Thompson 

36.  Mills    v     Richland     Twp.,  v.    Detroit,   114   Mich.   502. 

72  Mich.  100.     In  Auditor  Gen-  40.     Blanchard   v.    Powers,   49 

eral  v.  Sparrow,  116  Mich.  574,  Mich.  614,  624;  Gamble  v.   East 

it  is  held,  in  the  proceedings  to  Saginaw.  43  Mich.  367.     In  Wall 

foreclose  the  tax  in  equity,  that  v.     Trumbull,     16     Mich.     t30. 

the  fact  that  a  majority  of  the  where  the   supervisor  was   sued 

board   did   not   sign   the   certifi-  in  trespass  for  issuing  his  war- 


§§  103,  104  THE  LAW  OF  TAXATION  144: 

§103.     Board  of  Supervisors. 

Where  the  record  of  the  board  does  not  show  who,  or 
how  many,  were  present,  it  will  be  presumed  that  a  quorum 
was  present41.  It  is  competent  for  the  board,  at  an  adjourned 
meeting,  in  November,  to  do  every  thing  required  by  law  to 
have  been  done  at  their  October  session42.  A  board  of 
supervisors  has  no  authority  to  borrow  money  except  where 
the  power  is  given  by  statute.  Where  a  board  exceeds  its 
powers  and  borrows  money,  the  county  will  not  be  liable  for 
money  had  and  received,  since  all  persons  dealing  with  coun- 
ties are  bound  to  ascertain  the  limits  of  their  authority  as 
fixed  by  the  statute  or  organic  law,  and  are  chargeable  with 
knowledge  of  such  limits48. 

§104.     Certifying  Taxes  to  Board  of  Supervisors. 

The  board  of  supervisors  cannot  certify  the  taxes  to  be 
raised  in  any  township  without  the  certificate  of  the  town- 
ship clerk;  but  if  the  supervisor  levies  a  tax  not  appearing 
in  the  certificate  to  the  supervisors,  it  must  be  shown  by 
the  person  obj  ecting  that  it  was  not  authorized  by  the  proper 
authorities44.  A  legal  township  tax,  authorized  to  be  spread 
upon  the  roll  by  law,  will  not  be  illegal  because  the  same  had 
not  been  certified  to  the  board  of  supervisors,  and  by  them 
directed  to  be -levied.  The  action  of  the  supervisors  is  not 
required  to  give  local  officers  power  in  the  premises,  but 

rant  for  illegal  taxes,  held,  that  42.     Hubbard    v.    Winsor,    15 

a  fair  certificate  from  the  clerk  Mich.    146. 

of  the  board  of  supervisors  pro-  43.     McCurdy    v.    Shiawassec 

tected    him    if    he    was    not    ac-  Co.,    15    L.    N.    873,    construing 

tually  aware  of  the  illegality  of  C.  L.   §2484. 

the    tax    certificate.      Tompkins  44.     Auditor    General    v.    Mc- 

v.  Johnson,  75  Mich.  181.  Arthur,  87  Mich.  457,  462;  Boyce 

41.     Lacey   v.    Davis,   4    Mich.  v.    Auditor    General,    90    Mich. 

140.  314. 


BOARDS  OF  KKV1KW.  ST  1'HKVISORS,  ETC. 

rather  to  insure  the  duty  of  being  surely  and   regularly 
performed45. 

$105.     Re-assessment  of  Taxes. 

The  statute  requires  lands,  the  tax  for  which  has  been 
rejected  for  any  reason  except  that  the  land  was  not  subject 
to  taxation  as  the  tax  had  been  paid,  to  be  re-assessed  upon 
the  same  land.  The  board,  however,  cannot  simply  order 
these  taxes  re-assessed  without  specifying  what  lands  they 
arc  to  be  assessed  upon,  and  for  what  purpose.  In  the  case 
of  a  drain  tax,  the  record  must  also  show  for  what  drainage 
district  the  tax  must  be  applied  to.  A  resolution  omitting 
these  details,  and  in  effect  leaving  it  to  the  discretion  of  the 
local  supervisor  to  designate  the  parcel  to  be  charged,  con- 
fers no  jurisdiction  to  re-assess  the  tax46. 

Statutory  Provision. 

C.  L.  '97,  §3919,  provides:  "The  auditor  general 
shall  prepare  and  forward  to  the  county  treasurer  a 
statement  of  such  rejected  taxes,  and  a  description  of 
the  lands  upon  which  the  same  were  assessed ;  and  such 
county  treasurer  shall  lay  the  same  before  the  board  of 
supervisors  at  their  next  session  thereafter,  and  if  such 
taxes  shall  have  been  rejected  or  charged  back  by  the 
auditor  general,  except  for  the  reason  that  such  land 
was  not  subject  to  taxation  at  the  time  of  assessment 
for  such  taxes,  or  that  the  taxes  thereon  had  been  paid, 
or  that  there  had  been  a  double  assessment  thereof,  the 
board  of  supervisors  shall  cause  the  same  to  be  re- 

45.     Robbins     v.     Barren,     33  v.  Sebring,  66  Mich.  210,  218. 
Mich.   124,   126;   Alvord  v.   Col-          46.     Auditor   General   v.   Tut- 

lins,    20    Pick.    418;    Upton    v.  tie,  146  Mich.  106. 
Kennedy,   36   Mich.   215;   Boyce 

(10) 


§  106  THE  LAW  OF  TAXATION  146 

assessed  upon  the  same  land,  and  collected  with  the 
taxes  of  the  then  current  year,  and  in  the  same  manner. 
If  such  taxes  cannot  be  properly  re-assessed  upon  the 
same  lands,  the  board  of  supervisors  shall  cause  the 
same  to  be  re-assessed  upon  the  taxable  property  of  the 
proper  township."  See  §174,  post,  as  to  rejection  of 
taxes  by  county  treasurer. 
If  the  re-assessment  was  ordered  as  per  a  certain  schedule 

which  had  been  reported  to  the  board,  such  a  designation 

would  be  valid47. 

§106.     Equalization  of  Counties. 

The  board  of  supervisors  have  full  and  complete  juris- 
diction, not  subject  to  review,  over  the  whole  subject  of 
equalization  of  real  estate  taxation,  and  may  adopt  their 
own  means  of  reaching  the  result.  When  they  have  fixed 
the  amount  at  which  the  real  estate  in  a  township  is  to  be 
valued  for  the  year,  it  is  conclusive  and  cannot  be  in- 
validated by  showing  that  they  had  adopted  an  erroneous 
footing  or  aggregate,  of  the  valuations  returned  by  the 
supervisor48. 

• 
Statutory  Provision. 

C.  L.  '97,  §3857,  as  amended  by  Act  No.  127 
vof  Laws  of  1909,  provides:  "The  board  of  super- 
visors in  each  county  shall,  at  its  session  in  October 
in  each  year,  examine  the  assessment  rolls  of  the  several 

47.  Auditor  General  v.  Flem-  had   been   made,   the   contestant 
ing,  142  Mich.  12;  Gage  v.  Sagi-  must  show  that  he  had  been  in- 
naw,  128  Mich.  682.  jured   thereby.     In    Grand   Rap- 

48.  In  Case  v.  Dean,  16  Mich.  ids    v.    Wellman,    85    Mich.    234, 
12,    25,    the    board    had   adopted  the  action  of  the  board  is  held 
an    erroneous    footing     of     the  conclusive      as      between       the 
rolls.     Held,   that   if   a   mistake  wards  of  a  city. 


147  BOARDS  OF  REVIEW,  SUPERVISORS,  ETC.  §  106 

townships,  \v,ards,  or  cities,  and  ascertain  whether  th* 
relative  valuation  of  the  real  property  in  the  respective 
townships,  wards,  or  cities,  has  been  equally  and  uni- 
formly estimated.  If,  on  such  examination,  it  shall 
deem  such  valuation  to  be  relatively  unequal,  it  shall 
equalize  the  same  by  adding  to  or  deducting  from  the 
valuation  of  the  taxable  property  «in  any  township, 
ward,  or  city,  or  townships,  wards,  or  cities,  such  an 
amount  as  in  its  judgment  will  produce  relatively  an 
equal  and  uniform  valuation  of  the  real  property  in  the 
county,  and  the  amount  added  to  or  deducted  from  the 
valuation  in  any  township  ward  or  city,  shall  be  entered 
upon  the  records.  It  shall  also  cause  to  be  entered 
upon  its  records  the  aggregate  valuation  of  the  tax- 
able real  and  personal  property  of  each  township,  ward, 
or  city  in  its  county  as  determined  by  it.  The 
board  shall  also  make  such  alterations  in  the  descrip- 
tion of  any  lands  upon  such  rolls  as  may  be  necessary 
to  render  such  descriptions  conformable  to  the  require- 
ments of  this  act.  After  such  rolls  shall  have  been 
equalized,  each  shall  be  certified  to  by  the  chairman 
and  clerk  of  the  board  and  be  delivered  to  the  super- 
visors of  the  proper  township,  ward,  or  city,  who  shall 
file  and  keep  the  same  in  his  office."  It  also  provides 
that  any  supervisor  may  appeal  from  such  equaliza- 
tion to  the  committee  on  appeal,  which  shall  consist 
of  three  ex-supervisors  of  adjoining  counties. 
The  equalization  will  be  sufficient  if  it  appear  that  a 
specified  sum  has  been  added  to  or  taken  from  any  roll,  and 
this  sum  may  be  inferred  if  the  records  show  the  gross  sum 
at  which  the  township  is  equalized49.  The  duty  of  the  board 

49.     Tweed      v.      Metcalf,       4      burn,    104    Mich.    494;    Auditor 
Mich.  579,  589;  Hoffman  v.  Lyn-       General  v.  Ayer,  109  Mich.  694; 


§107 


THE  LAW  OF  TAXATION 


148 


in  equalizing  taxation  is  political,  and  .their  power  ex- 
clusive60. An  equalization  in  July,  instead  of  October,  is 
valid51. 


§107.     Equalization.     Record  of, 

The  proceedings  of  the  board  must  show  they  took  such 
action  as  the  statute  requires.  The  action  of  the  board  can 
only  be  shown  by  its  records52,  and  parol  proof  will  not  be 
received  to  vary  or  explain  them53.  The  record  must  be 
signed  by  the  chairman  of  the  board54.  When  the  chairman 
of  the  board  signs  the  certificates  of  equalization  attached  to 
the  various  tax  rolls,  the  fact  that  the  clerk  of  the  board 
neglected  to  do  so  is  harmless55.  The  court  intimates  that 


Auditor  General  v.  Sparrow,  116 
Mich.  574;  Auditor  General  v. 
Ayer,  122  Mich.  136;  Boyce  v. 
Auditor  General,  90  Mich.  314, 
326.  In  Silsbee  v.  Stockle,  44 
Mich.  3C1,  the  equalization  was 
a  statement  in  tabular  form, 
and  was  held  good,  though 
made  in  June  instead  of  Octo- 
ber. In  Auditor  General  y. 
Longyear,  110  Mich.  223,  it  is 
held  that  the  adding1  or  deduct- 
ing may  be  shown  by  additions 
to  the  personal  property,  the 
total  aggregate  being  the  same. 
In  Boyce  v.  Sebring,  66  Mich. 
210,  it  is  held  that  the  adoption 
of  the  report  of  the  committee 
made  such  report  the  action  of 
^e  board. 

50.  Attorney  General  v.  San- 
ac  Board,  42  Mich.  72. 

51.  Auditor   General   v.    Nor- 
/ington,  12  L.  N.  200;  Boyce  v. 
Sebring.    66    Mich..    210;    Silsbee 
v.  Stockie,  44  Mich.   361;  Audi- 
tor General  v.  Griffin,  140  Mich. 
427. 

52.  Yelverton     v.    Steele,    36 
Mich.    62;     Paldi     v.     Paldi,     84 


Mich.  346,  356. 

53.  Williams     v.     Mears,     61 
Mich.    86;    McDonald    v.    Esca- 
naba,  62  Mich.  555.     In  Auditor 
General    v.    Roberts,     83     Mich. 
471,  it  did  not  appear  what  was 
the  valuation   of  a  township  or 
ward  as  equalized,  nor  the  valu- 
ation as  made  bv  the  supervisor. 
Held,   void.       In    Paldi   v.    Paldi, 
84  Mich.  346,  356,  it  is  held  that 
the    record    must    be    clear    and 
unequivocal.     In  Chamberlain  v. 
St.    Ignace,    92    Mich.    332,    it    is 
held    that    it    is    only    necessary 
that  the  records  show  the  total 
aggregate    of    taxable    property 
as    determined    by    the    board; 
and   where    such    aggregate    ap- 
pears, it  will  be  presumed  that 
no  additions  or  deductions  were 
necessary,    to   this   extent   over- 
ruling 63  Mich.  471,  supra.  Hoff- 
man v.  Lynburn,  104  Mich.  494. 

54.  Weston    v.    Monroe,     84 
Mich.  341. 

55.  Auditor   General   v.   Nor- 
rington.    140    Mich.    427;    Audi- 
tor General  v.  Griffin,  140  Mich. 
427. 


1  I  !l  BOARDS  OF  REVIEW,  SUPERVISORS,  ETC. 

a  record  which  only  shows  that  the  committee  on  taxation 
filed  a  report,  showing  the  value  of  the  different  townships, 
and  marked  as  adopted,  will  not  be  considered  a  proper  or 
valid  record  of  equalization56. 

§108.     Equalization.     Affect  on  Townships. 

A  failure  of  the  board  to  equalize  townships  at  all,  or  a 
nugatory  attempt  so  to  do,  does  not  affect  the  local  township 
or  city  taxes57.  A  ward  is  a  unit  in  respect  to  equalization; 
and  a  deduction  of  a  lump  sum  from  several  combined  wards 
renders  the  state  and  county  taxes  void58.  When  Bay  City, 
and  West  Bay  City  were  equalized  as  units,  instead  of  the 
various  wards  therein,  and  the  state  tax  commission  made 
additions  to  certain  wards  of  West  Bay  City  after  such 
equalization,  those  affected  thereby  had  their  excess  in  tax 
remitted59. 

Statutory  Provisions. 

Act  No.  127  of  Public  Acts  of  1909,  provides :  "Sec- 
tion 37.  The  board  of  supervisors  at  its  annual  session 
in  October  in  each  year  shall  ascertain  and  determine 
the  amount  of  money  to  be  raised  for  county  purposes, 
and  shall  apportion  such  amount,  and  also  the  amount 
of  the  state  tax  and  indebtedness  of  the  county  to  the 
state  among  the  several  townships  in  the  county  in 
proportion  to  •  the  valuation  of  the  taxable  property 
therein,  real  and  personal,  as  determined  by  it,  or 
as  determined  by  the  committee  on  appeal,  upon  appeal 
in  the  manner  provided  by  law,  for  that  year,  which 

56.  Briggs     v.     Guleck,     143  58.     Messenger   v.    Peter,    129 
Mich.  457.  Mich.   93. 

57.  Chamberlain    v.     St.     Ig-  59.     Auditor   General  v.   Nor- 
nace,    92     Mich.    232;     Auditor  rington.  140  Mich.  427;  Auditor 
General    V.    Gurney,    109    Mich.  General    v.     Griffin,    140    Mich. 
72.  427. 


§  108  THE  LAW  OF  TAXATION  150 

determination  and  apportionment  shall  be  entered  at 
large  on  its  records.  It  shall  also  examine  all  cer- 
tificates, statements,  papers  and  records  submitted  to 
it,  showing  the  moneys  to  be  raised  in  the  several 
townships  for  school,  highway,  drain,  township  and 
other  purposes.  It  shall  hear  and  duly  consider  all 
objections  made  to  raising  any  such  moneys  by  any 
taxpayer  to  be  affected  thereby.  If  it  shall  appear  to 
the  board  that  any  certificate,  statement,  paper  or 
record  is  not  properly  certified,  or  that  the  same  is  in 
anywise  defective,  or  that  any  proceeding  to  authorize 
the  raising  of  any  such  moneys  has  not  been  had  or  is 
,in  anywise  imperfect,  and  such  certificate,  statement, 
paper,  record  or  proceeding  can  then  be  corrected, 
supplied  or  had,  such  board  may  authorize  and  re- 
quire such  defects  or  omissions  or  proceedings  to  be 
corrected,  supplied  or  had.  'It  may  refer  any  or  all 
such  certificates,  statements,  papers,  records  and  pro- 
ceedings to  the  prosecuting  attorney,  whose  duty  it 
shall  be  to  examine  the  same,  and  without  delay  re- 
port in  writing  the  opinion  to  the  board.  It  shall 
direct  that  such  of  the  several  amounts  of  money  pro- 
posed to  be  raised  for  township,  school,  highway, 
drain  and  all  other  purposes  as  shall  be  authorized 
by  law,  be  spread  upon  the  assessment  roll  of  the 
proper  townships,  wards  and  cities.  Such  action  and 
direction  shall  be  entered  in  full  upon  the  records  of 
the  proceedings  of  the  board,  and  shall  be  deemed 
final  as  to  the  levy  and  assessment  of  all  such  taxes, 
except  when  there  is  a  change  made  in  the  equaliza- 
tion of  any  county  by  the  committee  on  appeal  upon 
appeal,  in  the  manner  provided  by  law." 


151  BOARDS  OF  REVIEW,  SUPERVISORS,  ETC.  §§  109,  110 

§109.     Certificate  of  Equalization. 

The  certificate  of  equalization  to  be  attached  to  the  roll  is 
evidence  to  the  tax  payer  that  the  board  has  performed  its 
duty;  and  if  it  is  absent  or  unsigned,  the  state  and  county 
taxes  will  be  void60.  The  records,  also,  of  the  board,  in 
making  such  equalization,  must  be  signed  by  the  chairman 
to  confer  authority  to  levy  the  state  and  county  taxes91. 
Equity,  however,  will  not  enjoin  the  collection  of  a  tax 
because  this  certificate  was  not  signed62. 

§110.     State  Taxes. 

The  auditor  general  is  bound  to  take  notice  of  the  statute 
changing  county  boundaries  and  creating  new  counties,  and 
is  bound  to  know  what  land  falls  in  each  county.  The 
reports  of  assessments  made  to  the  state  board  of  equal- 
ization should  furnish  to  the  auditor  general,  who  has  direct 
access  to  them,  the  means  of  calculating  the  precise  share 
which  should  be  laid  upon  each  county83. 

Statutory  Provision. 

C.  L.  '97,  §3858,  provides  that  the  auditor  general 
shall  apportion  the  state  tax.  "The  state  tax  he  shall 
apportion  among  the  several  counties  in  proportion  to 
the  valuation  of  the  taxable  property  there  as  deter 
mined  by  the  last  preceeding  state  board  of  equalization, 
and  shall  before  the  October  session  of  the  board  of  su- 

60.  H.      S.     §1029;      Maxwell      90  Mich.  314,  it  is  held  that  the 
v.    Paine,    53    Mich.    30;    West-      signatures    may    be    supplied    by 
brook  v.  Miller,  64  Mich.  129.          the    officers    during   their    term 

61.  Weston    v.     Monroe,    84      of  office. 

Mich.    341;    Pearsall    v.    Eaton  62.     Burt  v.   Auditor  General, 

Co.    Supervisors,    71     Mich.    438,  39    Mich.   126. 

Auditor  General  v.  Hill,  97  Mich.  63.     Ontonagon   Co.  v.  Goge- 

80.    In  Boyce  v.  Auditor  General,  bic  Co.,  74  Mich.  721. 


§  110  THE  LAW  OF  TAXATION 

pervisors  in  each  year  make  out  and  transmit  to  the 
clerk  of  each  county  a  statement  of  the  amount  of  such 
taxes  so  apportioned  to  such  county."  The  section 
also  provides  that  any  indebtedness  of  the  county  to  the 
state  shall  likewise  be  apportioned. 

Where  a  county  is  divided,  the  auditor  general  should 
anticipate  such  division,  and  properly  distribute  the  tax, 
though  the  act  may  not  be  in  effect  when  he  makes  his 
distribution64.  It  is  the  duty  of  the  board  of  supervisors, 
when  the  amount  of  the  state  tax  is  seasonably  certified  to 
them,  to  apportion  it  among  the  several  townships  and 
wards ;  and  they  will  be  compelled  by  mandamus  to  do  so65. 
The  effect  of  improper  equalization  has  heretofore  been 
pointed  out. 

Under  C.  L.  1871,  §  1090,  all  unpaid  taxes  belonged  to 
the  state;  and  where  the  taxes  had  been  levied  the  county 
had  performed  its  full  duty.  It  was  the  duty  of  the  county 
to  see  that  the  state  charges  were  regularly  assessed,  and  it 
was  liable  to  the  state  for  all  taxes  which  were  rejected  and 
sent  back.  If  the  state  bid  in  the  returned  lands  and  sold 
them  for  less  than  the  accumulated  charges,  the  difference 
could  not  be  charged  up  to  the  county  by  any  retroactive 
statute66.  The  auditor  general  does  not  open  accounts  with 
any  township  or  return  township  monies  collected.  He  re- 

64.  Auditor    General    v.    Me-  that   where    land    had   been    re- 
nominee  Co.,  89  Mich.  552,  578.  turned  delinquent  for  5  years  it 

65.  Auditor  General  v.  Jack-  should    be    sold     for     what    't 
son    Board,    24    Mich.    237.       In  would      bring,     and     any     loss 
Hoffman  v.  Lynburn,  104  Mich.  charged  up  to  the  county.    This 
494.  it  is   held  that  the  amount  act  was  held  prospective  in  its 
of   state    taxes    certified    to   the  operation   in    Clark   v.    Hall,   19 
board  need  not  be  spread  upon  Mich.   356,   and   Smith   v.   Audi- 
the  records  of  the  board.  tor  General,  20  Mich.  398.     Audi- 

66.  Auditor  General  v.  Mon-  tor    General    v.    Saginaw    Board 
roe    Board,    36    Mich.    76.      This  f>2    Mich.    579,    591,    mandamus 
[Act     (§24,     No.     169,     Laws    of  is    held    the    proper    remedy    to 
1869,  repealed  in  1875),  provided  obtain    an   accounting. 


1 .".:;  BOARDS  OF  REVIEW,  SUPERVISORS,  ETC,   >  >    Ml.   11- 

tains  all  taxes  collected  while  the  county  is  indebted  to  the 
state67. 

§111.     State  Tax  Commission. 

The  purpose  of  the  act68  creating  this  board  is  consti- 
tutional. In  the  absence  of  constitutional  limitation,  the 
state  may,  by  its  legislature,  prescribe  the  limits  of  taxation 
and  the  agencies  to  be  employed.  No  rights  of  local  self 
government  is  infringed.  While  the  office  of  supervisor  is  a 
constitutional  office,  and  cannot  be  abrogated,  his  powers  are 
subject  to  legislative  modification.  The  right  of  appeal  from 
the  action  of  a  supervisor  has  always  been  recognized  in 
some  form ;  and  the  right  to  review  his  action,  or  that  of 
any  inferior  board  is  not  depriving  him  of  the  functions  of 
his  office.  This  act  applies' to  cities  generally,  as  well  as  to 
townships69. 

§112.     State  Tax  Commission  Powers00*. 

The  board  has  full  power  to  review  assessment  rolls,  but 
cannot  do  so  after  the  tax  roll  has  been  made  up  and  placed 
in  the  collectors  hands70.  The  board  also  has  the  right  to 
review  the  assessment  of  individuals ;  it  establishes  the  valu- 
ation, and  its  action  is  final.  It  is  not  advisory  to  the 
assessor.  It  may  review  the  action  of  the  board  of  super- 
visors, and  of  the  state  board  of  equalization71. 


67.  Ottawa    Board    v.    Audi-  491,  494. 

tor  General,  69  Mich.  1.  69a.     See   §97    supra. 

See        Accounting        between  70.     State  Tax  Commission  v. 

State  and  County.  Cady,  124  Mich.  683. 

68.  Act    No.    154     of     Public  71.     State  Tax  Commission  y. 
Acts  of  1899.  Quinn,    125    Mich.    128;    Detroit 

69.  Tax        Commission       v.  United   Ry.  v.  State  Tax   Corn- 
Board    of   Assessors,   124   Mich.  missioners,  136   Mich.  96. 


§  113  THE  LAW  OF  TAXATION  154 

§113.     State  Tax  Commission.     Appointment  of, 

The  office  of  city  asessor  is  incompatible  with  a  member- 
ship on  this  board.  The  acceptance  of  the  office  of  state 
tax  commissfoner  is,  ipso  facto,  a  vacation  of  the  former 
office.  This  office,  not  being  a  constitutional  one,  is  noi 
governed  by  the  constitution  as  to  the  duration  of  the 
appointments.  It  is  competent  for  the  legislature  to  fix  the 
term  thereof,  and  to  provide  that  an  appointment  in  a 
vacancy  should  not  extend  longer  than  the  next  meeting  of 
the  legislature.  In  the  case  of  an  appointment  which  must 
be  with  the  advice  and  consent  of  the  senate,  and  which  the 
senate  had  concurred  in,  the  senate  may,  at  the  same  session, 
before  any  action  on  its  vote  had  been  taken,  reconsider  its 
vote  and  refuse  to  consent  to  the  appointment,  since  in  con- 
curring it  exercises  a  legislative  function  revocable  under  the 
rules  governing  that  body72. 

72.       Attorney       General       v.       Oakman,  126  Mich.  717. 


CHAPTER  VII. 
TOWNSHIP  TAXES. 

5 114.  Township  Clerk's  Certificate. 

5115.  Action  of  Electors. 

§1K>.     Meeting  of  Electors  Records. 

5117.  Levy.     Township  Board. 

§118.  Levy.     Specifying  Amounts. 

8119.  Notice  of  Board  Meetings. 

5120.  Lighting  Plants  and   Water  Works. 

§121.  General  Highway  Tax. 

8122.  Highway  Tax  for  Future  Use. 

8123.  Highway  Tax  Estimates. 

8124.  Return  of  Highway  Labor  Tax. 

8125.  Highway  Tax     Miscellaneous. 

8126.  Highway  Tax     Action  of   Supervisors. 

8127.  School  Tax.     Purpose  of 

8128.  Taxes   for   Higher   Education. 

8129.  School  Tax.     Authority  to  Raise, 
8l3().  S-.hool  Taxes,  Miscellaneous. 
5i:;i.  Surveyor's  Tax. 

8132.  Dog  Tax. 

8133.  Fence  Viewer's  Tax. 
$134.  Agricultural   Society  Tax. 
§135.  Bounty  Tax. 

CROSS-REFERENCES. 

Amount  of  Special  Assessment  Paid  by  City,  8334.  Deter- 
mination of  Special  Assessment,  88321,  332.  Limitation  of  Special 
Assessment,  8330.  Vote  for  Special  Assessment.  8319. 

§114.     Township  Clerk's  Certificate. 

It  is  the  duty  of  the  township  clerk  to  certify  to  the 
supervisor  a  statement  of  all  taxes  to  be  raised  in  the  town- 
ship, and  also  the  aggregate  thereof;  and  the  supervisor 
is  bound  by  this  certificate1.  The  supervisor  cannot  alone 

1.     C.   L.   '97.   83859,  Tax  Law,  meeting  of   the   board   of   super- 

836.     Case  v.  Dean,  16  Mich.  12,  visors.     Smith    v.    Crittenden,   16 

26.       In    Peninsular   Iron    Co.   v.  Mich.    152;    Sage   v.    Stevens,    72 

Crystal  Falls  Twp..  60  Mich.  510,  Mich.  638;  Gamble  v.  Stevens,  78 

it  is  held  that  the  certificate  may  Mich.  302. 
be    made    any     time    before    the 


§  115  THE  LAW  OF  TAXATION  156 

fix  the  amount  of  the  township  tax2.  The  certificate  need 
not  aggregate  the  taxes,  and  it  may  contain  a  certified  copy 
of  the  record  of  the  vote  of  the  electors,  the  original  record 
not  having  been  entered  in  the  record  book3.  The  clerk 
will  be  compelled  by  mandamus  to  issue  the  proper  cer- 
tificate to  levy  a  tax  to  satisfy  a  judgment  against  the 
township4. 

§115.     Action  of  Electors. 

The  electors  have  power  to  raise  such  sums,  not  exceed- 
ing the  sum  fixed  by  statute,  as  they  may  deem  necessary. 
The  particular  use  of  the  money  for  the  contingent  fund 
need  not  be  specified6.  The  records  of  township  meetings 
must  be  view  with  some  indulgence  for  they  are  made  up 
for  the  most  part  by  persons  without  training  in  the  law, 
and  who  make  no  attempt  to  do  more  than  to  express  in 
simple  and  plain  language  the  township  transactions.  And 
when  a  "resolve"  is  entered  on  such  a  record  as  having 
been  adopted,  it  would  be  very  unreasonable  to  hold  it 
insufficient  because  it  failed  to  state  in  terms  that  it  was 
adopted  on  an  affirmative  vote  of  a  majority  of  competent 
voters.  When  a  tax  is  voted  for  a  particular  purpose,  it 
is  not  necessary  that  the  estimates  upon  which  the  sum 
voted  is  based,  should  be  recorded9.  Where  the  statute 
requires  a  certain  vote,  as  two-thirds,  for  borrowing  money, 
it  is  taken  to  mean  two-thirds  of  those  voting  unless  other- 
wise specified7. 

2.  Lacey  v.  Davis.  4  Mich.  140.      to  destroy  Canada  thistles  in  the 

3.  Boyce    v.    Auditor    General,      highway. 

90  Mich.  314.  6.     Lake    Superior    Ship    Canal 

4.  Courtwright     v.     Township  Co.  v.  Thompson  Twp.,  56  Mich. 
Clerk,  54  Mich.  182.  493. 

5.  Tweed  v.   Metcalf,  4  Mich.  7.     Daniels  v.  Long,   111  Mich. 
579,  592,  holding  that  money  vot-  562. 

ed  as  a  highway  tax  could  be  used 


157 


TOWNSHIP  TAXES 


§116.     Meeting  Electors.    Records. 

There  is  not  any  law  which  authorizes  a  supervisor  of 
a  town  to  levy  a  tax  for  township  purposes  without  the 
same  has  first  been  voted  at  a  legal  meeting  of  the  qualified 
electors  of  the  township;  or  by  the  township  board,  where 
the  qualified  electors  had  neglected  or  refused  to  vote  such 
sums  as  were  necessary  to  defray  the  ordinary  expenses  ol 
the  township.  In  either  case,  sudi  vote  would  be  matter 
of  record,  and  should  be  shown  by  the  township  records. 
Proceedings  by  which  taxes  are  voted  cannot  be  left  in 
parol;  and  if  the  records  does  not  disclose  the  fact  that  the 
proper  authority  voted  to  raise  money  to  defray  the  ex- 
penses of  the  township,  taxes  levied  for  that  purpose  by 
the  supervisor  would  be  illegal;  and  no  presumption  arises, 
in  the  absence  of  such  vote  appearing  upon  the  record,  that 
it  was  had  or  taken8.  The  refusal  or  neglect  of  the  elec- 
tors to  vote  a  tax  must  appear  of  record.  See  §115.  No 
notice,  however,  is  required  to  be  given,  of  the  annual  meet- 
ing of  the  electors,  the  time  for  which  is  fixed  by  statute. 
In  cases  of  special  meetings,  the  electors  are  to  have  notice 
of  the  purpose  for  which  they  are  called9.  The  provision 


8.  Williams  v.  Mears,  61  Mich. 
86.  89.  In  Moser  v.  White,  29 
Mich.  59,  60,  it  is  held  that  every 
essential  proceeding  in  the  course 
of  a  levy  of  a  tax  must  appear  in 
some  written  and  permanent 
form  in  the  records  of  the  bodies 
authorized  to  act  upon  them. 
Such  a  thing  as  a  parol  levy  of 
taxes  is  not  legally  possible  under 
our  laws.  In  Mich.,  etc.,  Iron  Co. 
v.  La  Anse  Twp.,  63  Mich.  700,  it 
is  held  that  a  highway  tax  can- 
not be  levied  upon  the  verbal  re- 
port of  the  highway  commission- 
er ;  but  it  is  held  otherwise,  under 
the  law  of  1885,  in  Turnbull  v. 


Alpena  Twp.,  74  Mich.  621,  631. 
In  Auditor  General  v.  Longyear, 
110  Mich.  223,  where  a  record 
bearing  date  of  the  township 
meeting,  showed  that  a  tax  was 
voted  by  some  one,  it  will  be  pre- 
sumed to  have  been  the  action  of 
the  electors  at  a  township  meet- 
ing. In  Tweed  v.  Metcalf,  4 
Mirh.  579,  where  the  roll  showed 
one  sum  and  a  tabular  statement 
of  the  board  another,  the  roll  was 
presumed  to  be  correct.  Mills  v. 
Richland  Twp..  72  Mich.  100; 
Rogers  v.  White.  f»S  Mich.  10. 

9.     Smith      v.      Crittenden,      16 
Mich.   152.  156. 


§  117  THE  LAW  OF  TAXATION  158 

of  C.  L.  §3443,  permitting  municipalities  to  raise  one-half 
of  one  per  cent  tax,  upon  the  assessed  valuations,  for  keep- 
ing highways  in  good  repair,  does  not  require  that  the 
records  show  a  prior  determination  of  this  necessity,  or 
that  this  tax  be  separated  from  the  rest  of  the  highway 
tax.  The  necessity  will  be  presumed,  upon  the  principle 
that  the  municipality,  whether  represented  by  its  people  or 
by  its  official  board,  has  acted  wisely  and  well  upon  all 
matters  of  policy  and  of  discretion  which  have  been  sub- 
mitted to  it,  and  that  the  conclusion  was  warranted  by  the 
facts  and  circumstances  which  were  the  basis  of  its  action. 
The  courts  have  no  power  to  review  their  action  so  long 
as  they  have  kept  within  the  limits  of  their  authority10. 

§117.     Levy.    Township  Board. 

The  authority  of  the  township  board  to  raise  a  town- 
ship tax  depends  upon  the  action  of  the  electors  in  either 
refusing  or  neglecting  to  raise  such  tax;  and  these  facts 
must  appear  of  record  to  justify  the  township  board  in 
its  action11. 

I 

Statutory  Provisions. 

C.  L.,  '97,  §2269,  provides:  "The  inhabitants  of 
any  township  shall  have  the  power,  at  any  legal  meet- 
ing, by  a  vote  of  the  qualified  electors  thereof,  to  grant 
and  vote  sums  of  money,  not  exceeding  such  amounts 
as  are  or  may  be  limited  by  law,  as  they  shall  deem 

10.       Diamond     Match     Co.  v.          11.    Lacey    v.   Davis,    4    Mich. 

Ontonagon,    140    Mich.    183,  186,  140.  157.     In  Mich.,  etc..  Land  Co. 

where    the     village     council     haa  v.  La  Anse  Twp.,  63  Mich.  700,  it 

ordered   a  highway  tax  of  V\   of  is  held  that  the  board  could  not 

1%,  the  limit  of  the  regular  tax  levy   a   highway   tax   based   upon 

being     *A     of     1%,    without    the  the  verbal  report  of  the  highway 

record    giving   any   reason    there-  commissioner, 
for. 


l.V.i 


TOWNSHIP  TAXI .S 


necessary  for  defraying  all  proper  charges  and  ex- 
penses arising  in  such  township;  but  they  shall  not  vote 
or  raise  by  tax,  in  any  one  year,  for  contingent  or 
ordinary  expenses  of  the  township,  to  exceed  the  sum 
of  one  thousand  dollars.  *  *  *" 

C.  L.  '97,  §2349,  provides :  "Whenever  the  quali- 
fied electors  of  -any  township,  at  the  annual  township 
meeting,  shall  neglect  or  refuse  to  vote  such  sums  of 
money  as  may  be  necessary  to  defray  the  ordinary 
township  expenses,  the  township  board  of  any  such 
township  is  hereby  authorized,  at  any  regular  meet- 
ing, to  vote  such  sum  or  sums  as  may  be  necessary 
for  that  purpose,  not  exceeding  in  any  one  year  the 
sum  of  one  thousand  dollars." 

It  would  seem,  however,  that  the  record  of  the  meet- 
ing of  the  electors  need  not  specifically  state  that  they 
neglected  or  refused  to  vote  money,  if  the  record  of  the 
board  ordering  the  tax  raised  shows  affirmatively  that  the 
question  of  raising  this  money  was  actually  submitted  to 
the  electors.  The  township  board  may  then  order  such 
money  raised  at  any  regular  meeting.  The  earlier  cases 
seemed  to  indicate  that  a  mere  silence  of  the  record  as  to 
the  action  of  the  electors  was  sufficient  to  authorize  the 
board  to  act12,  but  such  is  not  the  holding  of  the  later 
cases18. 


12.  Peninsular     Iron     Co.     v. 
Crystal  Falls  Twp.,  60  Mich.  510, 
519. 

13.  Newaygo      Mfg.      Co.      v. 
Eichtcnaw.    81     Mich.     416,    422; 
Gamble  v.  Stevens.  78  Mich.  302; 
Mills  v.  fcichland  T\vp..  72  Mich. 
100.  106;  F.  &  F.  Lumber  Co.  v. 
Thompson,    139    Mich.    698.       In 
Harding  v.   Bader,  75   Mich.  31  r>. 
where  the  electors  voted  a  certain 


sum,  it  is  held  that  the  record 
must  affirmatively  show  the  neg- 
lect to  vote  more.  In  Tillotson  v. 
Weher.  96  Mich.  145,  154.  it  is 
held  that  the  township  hoard  can- 
pot  raise  money  unless  the  record 
shows  that  the  items  were  sub- 
mitted to  the  electors  first.  In 
this  case,  the  electors  did  vote 
certain  items.  In  Savidge  v. 
Spring  Lake.  112  Mich.  92.  it  is 


S  117  THE  LAW  OF  TAXATION  160 

The  authority  of  the  board  is  limited  to  raising  money 
for  the  ordinary  expenses  of  the  township.  It  cannot  in- 
clude less  than  the  necessary  expenses  incurred  in  adminis- 
tering- the  government  of  the  township,  under  the  statutes 
creating  and  relating  thereto,  in  such  manner  as  will  best 
promote  the  convenience,  peace,  health,  prosperity  and  hap- 
piness of  the  people  residing  therein.  •  This  would  include 
payment  of  indebtedness,  a  contingent  fund  to  meet  such 
exigencies  as  cannot  be  forseen,  a  poor  tax,  but  it  would 
not  include  money  to  build  a  town  hall  or  establish  lost  cor- 
ners14. It  is  not  necessary,  however,  to  show  a  neglect  or 
refusal  to  vote  money  to  pay  debts  or  fixed  charges15.  In 
the  case  of  a  city  acting  through  its  council,  the  charters 
generally  require  that  the  vote  of  each  member  upon  a 
proposition  to  raise  money,  be  entered  upon  its  records.  A 
failure  to  observe  this  rule  will  render  the  local  taxes,  over 
which  the  council  has  any  discretion  as  to  raising,  invalid. 
Such  defective  record  cannot  be  amended  by  a  subsequent 
council  composed  of  less  than  a  majority  of  the  old  mem- 
held  that  the  village  council,  in  ditor  General  v.  Sparrow,  116 
the  absence  of  a  vote  of  the  elec-  Mich.  574 ;  but  a  highway  tax 
tors,  cannot  put  in  a  system  of  need  not  have  been  submitted, 
water  works  for  fire  protection.  while  a  school  tax  must  have 
In  Weston  Lumber  Co.  v.  Munis-  been.  In  Weston  Lumber  Co.  v. 
ing.  123  Mich.  138,  poor  tax  is  Munising  Twp.,  123  Mich.  133,  it 
held  an  ordinary  expense.  In  is  held  sufficient  to  authorize  the 
Sawyer-Goodman  Co.  v.  Crystal  tax  that  the  record  of  the  board 
Falls  Twp.,  56  Mich.  597,  provid-  ordering  the  same  recites  that  the 
ing  for  a  contingent  fund  is  held  attention  of  the  electors  was 
providing  for  an  ordinary  ex-  called  to  the  same,  and  that  they 
pense.  refused  to  vote  a  tax.  The  board. 

14.  Wisner  v.  Davenport,  5  however,  cannot  raise  a  debt  pre- 
Mich.  501.  In  Auditor  General  viously  provided  for  without 
v.  Duluth,  etc.,  R.  Co.,  116  Mich.  showing  that  the  debt  was  not 
122,  it  is  held  that  the  electors  paid. 

cannot  be  held  to  have  neglected  15.  Wisner  v.  Davenport.  5 
or  refused  to  vote  a  tax  unless  it  Mich.  501;  Newaygo  County  Mfg. 
was  submitted  to  them.  The  fore-  Co.  v.  Eichtenaw,  81  Mich.  416. 
going  holding  is  affirmed  in  Au- 


•|«)\\  N  SI  1 1 1-   TAX  MS 


bers18.  The  court  will  presume,  when  the  charter  requires 
it,  that  the  council  made  an  estimate  of  the  general  expendi- 
tures before  ordering  the  levy  of  a  city  tax,  notwitstanding 
such  estimates  do  not  appear  upon  its  records17. 


Levy.    Specifying  and  Limiting  Accounts. 

The  body  which  orders  the  raising  of  the  taxes  must 
specify  the  amounts  for  each  fund.  This  designation  lies 
at  the  foundation  of  the  authority  to  impose  the  tax.  The 
evident  purpose  of  this  requirement  is  to  protect  the  in- 
dividual against  excessive  levies,  as  well  as  to  enable  credi- 
tors and  citizens  to  see  that  the  payment  of  the  public  debt 
and  interest  thereon  is  provided  for18.  It  is  a  sufficient 
designation  of  the  amount  to  order  a  certain  percentage 
raised  upon  the  taxable  property19.  Where  the  amount  to 
pay  a  judgment  has  been  ordered  raised,  but  was  com- 
mingled with  other  taxes  on  the  role,  the  treasurer  cannot 
refuse  to  pay  the  judgment20.  The  fact  that  a  municipality 
has  raised  the  limit  of  its  taxation  provided  by  statue  does 
not  bar  an  action  against  it  for  bonded  indebtedness. 
Poverty  is  no  more  a  defense  against  just  debts  in  a  munici- 
pal corporation  than  in  any  other  corporation  or  individual. 
The  validity  of  a  contract  made  by  a  municipality  corporation 
necessarily  involves  the  right  to  raise  by  taxation  the 


16.  Pontiac  v.  Ax  ford.  49 
Mich.  69.  In  Steckert  v.  East 
Saginaw.  2ii  Mich.  104.  it  is  held 
insufficient  for  the  record  to  state 
that  a  resolution  was  adopted  "on 
rail,"  the  names  not  appearing. 
Where  the  charter  did  not,  in  ex- 
press terms,  require  the  aye  and 
nay  vote,  a  recital  that  an  ordi- 
nance was  adopted  by  a  majority 
vote,"  will  he  construed  to  mean 
a  n  :i«firity  of  the  entire  corp.-  1, 


9  out  of  10  being  present ;  Mc- 
Cormick  v.  Bay  City.  21  Mich. 
457,  4C3. 

17.     Auditor  General  v.  Hutch- 
113   Mich.  245. 


mson 

IS. 
397. 

19. 
490. 

20. 
v.  Scriher.  149  Mich.  701. 


Fay  v.  Wood.  65  Mich.  391, 
Boyce  v.  Peterson.  84  Mich. 
Montnelier  Savings  Bank 


§  118  THE  LAW  OF  TAXATION 

amount  which  it  has  agreed  to  pay.  The  right  of  contract 
must  be  limited  by  the  right  to  tax,  if,  in  the  given  case, 
no  tax  can  be  lawfully  levied  to  pay  the  debt,  the  contract 
is  void  for  want  of  authority  to  levy  it.  If  the  contract  is 
valid,  the  only  method  by  which  it  can  be  paid  is  by  taxation. 
Execution  cannot  issue  against  the  municipality.  The  pro- 
ceeding by  the  writ  of  mandamus  to  pay  compel  the  pay- 
ment of  the  judgment,  or  the  bonds  without  a  judgment, 
is  in  the  nature  of  an  execution  and  the  only  remedy  open 
to  the  creditor.  When,  however,  the  limitation  upon 
taxation  is  contained  in  the  statute  itself,  which  authorizes 
the  issue  of  the  bonds,  such  limitations  must  control21.  So, 
also,  will  constitutional  limitations  as  to  the  limit  of  taxa- 
tion, control22. 

The  municipality  cannot  avoid  its  legal  obligations  by 
the  reduction  of  its  valuation,  and  the  making  of  its  run- 
ning expenses  equal  the  limit  of  taxation.  Even  if  the  leg- 
islature passed  an  act  designed  to  aid  the  municipality  in 
avoiding  its  legal  obligations,  courts  would  not  hesitate  to 
declare  it  inoperative  and  void,  as  impairing  the  obliga- 
tion of  contracts.  The  state  itself  may  so  far  sympathize 
with  a  debtor  municipality  as  to  aid  it  in  its  obstructive 
methods  to  prevent  collection ;  and  it  may  seek  to  do  this 
by  so  limiting  the  municipal  power  to  tax  that  it  shall  be 
impossible  for  it  to  pay  its  debts  by  taxes  raised  within 
the  legal  limit.  Where  such  obstruction  has  been  attempted, 
however,  it  has  been  judicially  determined  that  the  limita- 
tion of  the  power  to  tax  under  such  circumstances  was 
an  impairment  of  the  obligation  of  contracts,  and  there- 

21.     Hammond     v.     Place.     116  582;  Shippey  v.  Mason,  90  Mich. 

Mich.    628 ;    Citizens,    etc.,    Co.   v.  45,  as  to  compelling  levy  of  judg- 

Topeka,  20  Wall.  655 ;  Watkins  v.  ment. 

Macon  Co.  Court,  68  Mo.  29;  U.  22.     Sherman  City  v.  Smith.  12 

S.    v.    Macon    County.    99    U.    S.  Tex.  Civ.  App.  580. 


TOWNSHIP  TAXES 

fore  inoperative.  The  state,  in  conferring  upon  its  munici- 
palities the  power  to  contract  debts  and  t<»  levy  taxes  for 
their  satisfaction,  impliedly  contracts  with  those  who  be- 
come creditors  in  reliance  upon  the  power,  that  such  power 
shall  not,  while  their  demands  remain  unpaid,  be  so  limited, 
impaired  or  hampered,  as  to  preclude  the  municipality  pro- 
viding for  and  satisfying  such  demands  according  to  their 
terms.  Any  subsequent  legislation  which  could  deprive 
creditors  of  the  resource  of  taxation  will  be  treated  as  inop- 
erative and  void,  and  a  levy  of  taxes  may  be  compelled 
under  such  circumstances23. 

§119.     Notice  of  Board  Meetings. 

No  meeting  of  the  township  board  can  be  legal  which 
was  not  attended  by  all  of  the  members,  unless  it  appear 
that  the  meeting  was  duly  called  and  the  members  notified. 
The  mere  attendance  "of  a  quorum  does  not  make  a  legal 
meeting;  every  member  has  a  right  to  be  present  and  par- 
ticipate in  its  action24.  While  there  should  be  proper  writ- 
ten evidence  on  file  or  of  record  showing  that  the  requisite 
statutory  preliminary  requirements  of  a  legal  meeting  had 
been  complied  with,  and  showing  that  such  meeting  had 
been  held,  and  the  proceedings  thereof,  courts  should  bear 
in  mind  that,  either  from  a  lack  of  experience  or  otherwise, 
it  frequently  happens  that  the  persons  whose  duty  it  is  to 
give  notice  of,  and  keep  a  record  of,  such  meetings,  fail  to 
keep  the  files  and  records  of  their  office  in  a  clear  and  in- 
telligible manner,  and  that  to  require  the  utmost  strict- 
ness in  this  respect  would  result  in  many  cases  in  rendering 
void  the  proceedings  of  such  quasi  corporations.  Their 

23.     Hammond     v.     Pine-,  110          ?».     Braver      Creek      Twp.     v. 
Mirh.    «20.    fi33,    quoting    Judge      Hastings.  S2  Mich.  528. 
Cooley. 


S  120  THE  LAW  OF  TAXATION 

proceedings,  therefore,  should  be  liberally  construed,  and 
all  the  proper  intendments  made  in  favor  of  their  regu- 
larity-15. 

The  statute  does  not  prescribe  what  notice,  or  how,  notice 
shall  be  given.  It  makes  no  provision  for  the  recording  of 
papers  filed  in  the  office  of  the  township  clerk  regarding 
business  of  this  nature.  Unless  required  by  statute,  proof 
of  notice  is  not  usually  recorded,  but  is  filed  away,  and 
when  so  filed  in  a  public  office,  constitutes  a  part  of  the 
records  of  that  office  and  may  be  resorted  to  to  supply  any 
omission  in  the  record.  The  township  clerk  is  clerk  of  the 
township  board.  His  office  is  the  depository  of  the  town- 
ship papers  and  records.  In  the  absence  of  proof  to  the 
contrary,  the  proofs  of  service  of  notice  of  the  meetings 
will  be  presumed  to  be  in  the  clerk's  office26. 

§120.     Lighting  Plants  and  Water  Works. 

The  city  and  village  charters  generally  provide  for  the 
purchase  of  water  works,  when  sanctioned  by  a  vote  of  the 
electors.  The  council  have  no  authority  to  entail  this  lia- 
bility, under  the  guise  of  fire  protection,  without  a  vote  of 
the  people.  Should  the  council  attempt  to  do  so,  an  in- 
junction will  lie  to  restrain  such  expenditure  at  the  instance 
of  any  citizen  whose  interest  is  sufficient  to  confer  juris- 

25.  Taymouth    Twp.    v.    Koch-  neither  of  these  cases  intended  to 
ler,  35  Mich.  22,  25 ;  Boyce  v.  Au-  limit  the  proof  to  the  jourral  of 
ditor  General,  90  Mich.  314,  3$5.  the   board.     In   Newaygo    County 

26.  Boyce  v.   Auditor  General,  Mfg.   Co.  v.   Eichtenaw,  81   Mich. 
90  Mich.  314,  324;  Auditor  Gen-  416,    it    was    presumed    that    th? 
eral   v.    Sparrow,    116   Mich.    574,  board    was    properly    constituted; 
595.      In    Harding    v.    Bader,    75  Lewick  v.  Glazier,  116  Mich.  495. 
Mich.   321,   and   in    Auditor   Gen-  In    Auditor    General    v.    Hutchin- 
eral   v.    McArthur,   87   Mich.  457,  son,  113  Mich.  245,  it  is  held  that 
464,    it    is    held   that    the    records  if  the  records  show  that  all  mem- 
must    show    proof    of    service   of  bers   were  present,    there   was   no 
notice  of  the  meeting  brt,  as  ex-  necessity  for  proofs  of  service  of 
plained    in    116    Mich.    574    supra,  notice  of  the  meeting. 


H:."t  TOWNSHIP  TAXES  ?    1-1 

diction27.  The  legislature  has  generally  fixed  the  total 
amount  which  a  city  council  can  order  raised  by  taxation; 
and  in  such  cases,  it  is  held  that  the  municipality  cannot 
incur  a  greater  liability,  though  to  be  paid  in  subsequent 
years,  than  they  would  have  had  the  power  to  raise  in  one 
year28.  In  cities  of  the  fourth  class,  the  charter  is  so  con- 
strued as  to  permit  the  council  to  make  a  ten  year  contract 
with  a  water  company  for  a  water  supply,  provided  the 
annual  payments  do  not  exceed  the  amount  the  city  is 
authorized  to  raise  each  year2*.  The  employment  of  a 
workman  by  the  month  is  an  appropriation  of  money  which 
requires  a  two-thirds  vote  of  the  council30. 

§121.     General  Highway  Tax. 

As  long  as  roads  are  used  and  treated  as  highways,  with 
the  consent  or  without  any  objection  from  the  persons  in- 
terested in  the  land  over  which  the  roads  pass,  the  tax 
can  be  legally  used  for  the  purpose  of  improving  and  keep- 
ing them  in  repair.  Highways  can  be  acquired  by  user  as 
well  as  proceedings  under  the  statute.  It  would  be  a  sin- 
gular rule  to  establish  that  no  highway  funds  could  be 
used  to  work,  a  road  not  legally  laid  out  under  the  statute, 
when  no  land  owner  makes  any  complaint,  or  puts  any 
obstacle  in  the  way  of  the  public  passage  over  his  prem- 
ises. It  would  prevent  the  very  user  which  the  law  pro- 

27.  Savidge     v.     Spring     Lake  Co.  v.  Eichtenaw.  81  Mich    41  f>. 
Village.    112    Mich.    91;    Farr    v.  20.     Monroe      Water      Co.      v. 
Grard  Ranids,  112  Mich.  99.    The  Heath,  115  Mich    277;    see    §11R. 
municipality  has  no  power  to  levy  supra.     Ludington   Water  Supply 
special  assessments  for  these  pur-  Co.  v.  Ludington.  119  Mich.  480. 
poses.     See  §418,  post.  holding    that    such    a    contract    is 

28.  Putnam    v.    Grand    Ranids.  not  the  incurring  of  an  indehted- 
58  Mich.  416:  Trump  Mfg.  Co.  v.  ness  since  the  services  are  to  b« 
Buchanan  Village,  116  Mich.  113:  rendered  in  the  future. 

Niles  Water  Co.  v.  Niles.  59  30.  Bishop  v.  Lambert,  114 
Mich  311;  Newaygo  County  Mfg.  Mich.  110. 


THE  LAW  OF  TAXATION 

vides  may  be  substituted,  by  sufficient  time  of  such  use, 
for  the  statutory  proceedings  to  acquire  title  to  a  high- 
way31. It  is  immaterial  that  the  highways  upon  which  it 
is  proposed  to  expend  the  tax  are  not  yet  laid  out,  or  that 
it  is  proposed  to  expend  the  money  raised  upon  the  whole 
township,  in  a  part  of  the  township,  if  the  authorities  act 
in  good  faith  in  levying  the  tax32.  The  labor  tax  cannot 
be  assessed  upon  incorporated  villages;  but  the  township 
may  maintain  its  highways  by  the  labor  tax,  and  raise  an 
additional  money  tax  if  the  labor  does  not  turn  out  or  is 
insufficient.  The  money  tax  is  to  be  assessed  upon  all  the 
property  in  the  township,  including  that  within  the  limits 
of  an  incorporated  village.  It  is  competent  for  the  legis- 
lature to  provide  that  all  of  the  taxable  property  of  a  village 
shall  be  assessed  for  repairs  and  improvements  in  the  high- 
ways, though  such  highways  are  wholly  outside  of  such 
village38. 

§122.     Highway  Tax.     Future  Use. 

As  before  pointed  out,  a  highway  tax  is  not  invalid  be- 
cause the  contemplated  highways  are  not  opened  up;  but 
a  highway  labor  tax,  or  its  cash  equivalent,  will  be  void 
when  assessed  in  road  districts  where  there  are  no  highways 
and  none  in  contemplation.  It  is  not  lawful  to  raise  taxes 
for  the  remote  future  where  the  roads  and  necessities  are 
both  contingent.  It  is  not  only  important  to  avoid  useless 
burdens,  but  the  practice  leads  to  carelessness  in  handling 
funds,  and  to  complications  when  changes  are  made  in  dis- 
tricts and  other  territorial  divisions.  All  reasonable  pre- 

31.  Peninsular     Iron     Co.     v.  33.     Perrigo       v.       Stephenson 
Crystal  Falls  Twp.,  60  Mich.  510,  Twt>..  141   Mich.  167;  Ryerson  v. 
523.  T.aketon  Twp..  52  Mich.  509;  Au- 

32.  Sawyer-Goodman      Co.     v.  ditor  Gen.  v   Duluth,  etc.,  R.  Co., 
Crystal  Falls  Twp..  56  Mich.  50n.  11ft  Mich.  122. 


TOWNSHIP  TAXES  §123 

sumptions  may  be  made  in  favor  of  the  necessities  of  a  new 
region,  but  no  presumption  can  stand  when  overthrown  by 
facts34. 

£123.     Highway  Tax  Estimates. 

These  estimates  must  be  furnished  in  writing,  signed  by 
the  commissioner  and  filed  with  the  township  clerk.  A 
record  which  discloses  that  the  commissioner,  clerk  and 
supervisor  met,  and  that  a  motion  to  assess  certain  highway 
tax  carried,  is  of  no  value.  It  meant  that  a  majority  of 
the  three  were  in  favor  of  the  tax;  and  such  minutes  are 
of  no  value  as  a  record  because  it  was  not  required  to  be 
made.  When  the  commissioner  assesses  highway  taxes,  it 
is  done  by  separate  lists,  prepared  and  signed  by  himself, 
for  the  separate  districts  and  delivered  by  the  commissioner 
to  the  over-seers;  and  an  authority  to  levy  a  money  tax 
must  appear  of  record.  There  can  be  no  tax  levied  by  the 
commissioner  or  under  his  direction,  by  parol35.  This 
estimate,  however,  is  unnecessary  when  the  electors  them- 
selves vote  the  highway  tax36.  Before  the  township  board 
can  authorize  the  raising  of  a  regular  highway  tax,  the 
estimates  of  the  commissioner  must  have  been  submitted 
to  the  electors,  and  there  must  have  been  a  refusal  or 

34.  Mich.  Land,  etc.,  Co.  v.  La  eral.  72  Mich.  415,  it  is  held  that 
Anse    Twp.,    63    Mich.    700,    703.  the  lahor  and  money  tax  author- 
Same  principle  in   Midland   Twp.  izcd   hy   H.   S.   §1327,   is  only   in- 
v.    Roscommon    Twp.,    39    Mich.  tended  to  meet  ordinary  expenses. 
424.  The    right    of    the    commissioner 

35.  See  §115.  supra,  as  to  ac-  under   H.    S.    §§1379,    1380.   C.   L. 
tion  of  the  electors.     Mich    Land,  '97,  §§4129,  4130,  to  expend  $1,000 
etc..    Co.    v.    La    Anse    Twp.,    63  in  bridging,  and  certify  the  same 
Mich.  700.  to  the  supervisor,  is  not  affected 

36.  Turnbull   v.   Alpena   Twp.,  by  the  vote  of  money  and  labor 
74  Mich.  621 ;  Lake  Superior  Ship  tax    under    the    first    mentioned 
Canal  Co.  v.  Thompson.  56  Mich.  sections. 

493.  In  Longyear  v.  Auditor  Gen- 


THE  LAW  OF  TAXATION 


neglect  to  vote  the  same37.  The  highway  labor  tax  may 
be  imposed,  however,  without  submitting  the  same  to  the 
electors38.  Although  the  commissioner  orders  an  excessive 
labor  tax,  yet  in  the  absence  of  the  rolls,  it  will  not  be 
presumed  to  have  been  levied39.  Under  C.  L.  '97,  §3443, 
a  municipality  will  be  presumed  to  have  raised  any  excess 
of  highway  tax  for  the  purpose  of  keeping  its  streets  in 
reasonable  repair.  The  statute  does  not  require  that  the 
records  show  that  such  a  necessity  existed40. 

§124.     Return  of  Highway  Labor  Tax. 

The  holding  of  the  court  with  respect  to  the  return  of 
this  labor  tax  has  varied  with  the  'different  statutes  and 
methods  of  enforcing  the  collection  of  taxes.  Under  the 
old  system  of  selling  lands  delinquent  for  taxes  by  adver- 
tisement, the  necessity  of  a  verified  return  by  the  over-seer 
was  uniformly  held  mandatory  and  jurisdictional,  not 
waived  or  cured  by  the  healing  acts41.  Since  the  change 

37    In        Peninsular        Savings  Sparrow,  116  Mich.  574,  it  is  held 

Bank  v.  Ward,  118  Mich.  87,  it  is  that  the  highway  tax  under  3  H. 

held  that  electors  could  not  vote  S.    §1356,    C.    L.    §4106    (highway 

a  highway  tax  of  1  per  cent;  the  labor),    may    be    raised    by    the 

court  would  not  presume  that   l/2  township  board   where    the    elec- 

per  cent  was  regular  highway  tax  tors  failed  to  vote  for  the  same, 

and    l/2   per   cent   labor   tax,   nor,  being  different  from  the  tax  un- 

because  laid  before  the  board  of  der   3   H.    S.    §§1354-5,   C.  L.   '97. 

supervisors,  would  it  be  presumed  Same    principle    in    Auditor    Gen- 

that   any  part   was   for   highways  eral  v.  Duluth,  etc.,  Ry,  116  Mich. 

and  bridges  under  H.   S.  §483,  C.  122. 

L.  '97  §  .....    Thayer  Lumber  Co.  39.     Hoffman    v.    Lynburn.    104 

v.    Soringwells    Twp.,    131    Mich.  Mich.  494. 

12;   Weston   Lumber   Co.   v.   Mu-  40.     Diamond     Match     Co.     v. 

nising  Twp.,  123  Mich.  13»;  Har-  Ontonagon.  140  Mich  J83. 

ding  v.  Bnder,  75  Mich.  316;  Au-  41.     Lake  Superior,  etc.,  Co.  v. 

ditor  General  v.  Duluth,  etc.,  Ry.,  Thompson,  56  Mich.  493  ;  Hogels- 

116  Mich.  122;  Tillotson  v.  Web-  kamp  v.  Weeks.  37  Mich  422;  Up- 

ber,  96  Mich.  144,  154;  see  Audi-  ton   v.   Kennedy,    36    Mich.    215; 

tor  General  v.  Sparrow,  116  Mich.  Seymour  v.  Peters,  67  Mich.  415  ; 

574.  N'owkirk  v.  Fisher.  72  Mich.  113; 

38.     In      Auditor      General      v.  Caledonia  Twp.  v.  Rose,  94  Mich. 


iC'J  TOWNSHIP  TAXES  >    1'.'"' 

in  the  methods  of  enforcing  the  collection  of  delinquent 
taxes  by  first  providing  a  hearing  in  equity,  the  omission 
of  this  return  is  held  not  to  be  jurisdictional,  and  to  be 
covered  by  the  healing  acts42. 

§125.     Highway  Tax.     Miscellaneous. 

A  special  highway  tax,  not  voted  by  the  electors,  and 
exceeding  the  amount  allowed  by  law,  is  void43.  The 
money  tax  for  highway  purposes  should  be  spread  accord- 
ing to  the  assessed  valuations  of  the  preceding  year44. 
Taxes  assessed  to  pay  orders  drawn  by  the  township  clerk 
for  repairing  bridges,  are  illegal  when  the  record  fails  to 
show  any  authority  for  such  expenditure45.  Where  an  in- 
corporated village  is  within  a  township,  and  a  highway 
money  tax  is  ordered  raised,  it  should  be  spread  over  all 
of  the  township,  including  the  village,  though  it  will  all 
be  expended  without  the  village46.  When  the  question  be- 
fore the  electors  is  whether  they  shall  raise  highway  money 
by  a  tax  or  by  a  loan,  they  must  decide  upon  one  method; 
they  cannot  adopt  both  methods47.  Highway  monies  raised 
by  road  districts  as  a  special  fund  for  a  state  road,  are  not 
county  funds  though  in  the  hands  of  the  county  treasurer; 
and  the  board  of  supervisors  cannot  control  their  disposi- 

2l(\:    Mich   Land,   etc,   Co.   v.   La  the  taxes.     In  Auditor  General  v. 

Anse  Twp.  f>3  Mich.  700,  holding  Longyear,  110  Mich.  223.  it  is  held 

that  §4  of  Chap.  2  of  Act  10  of  to  come  within  the  healing  act,  3 

Public   Acts  of   1882.  did  rot  re-  H.  S.  §1424,  C.  L.  §4179. 

quire  this  return,  but  that  section  43.     Flint,   etc.,   Ry.   v.   Auditor 

was  repealed.  General.  41  Mich.  635. 

42.     In    Hamilton,    etc.,    Co.    v.  44.     C.  L.  §§4073.  4074 ;  Mills  v. 

La  Anse  Twp.,  107  Mich.  419,  it  Richland  Twp.,  72  Mich.  100. 

was  held,  in  a  bill  to  quiet  title,  45.    Rogers  v.  White.  fiS  Mich, 

that   such   omission   was  jurisdic-  10. 

tional  and  that  the  healing  act  din  46.     Ryerson   v.    Laketon   Twp. 

not  apply :  but  nevertheless,  it  was  52  Mich.  509. 

a    proceeding   in    equity    and    the  47.    Loomis  v.  Rogers  Two..  53 

cloud  would  be  removed  only  on  Mich.  135. 
condition     that    complainant     pay 


$  125  THE  LAW  OF  TAXATION  170 

tion48.  A  return  of  highway  labor  tax  by  the  over-seers  is 
not  a  pre-requisite  to  placing  this  tax  provisionally  upon  the 
roll.  It  can  be  marked  off  on  presenting  receipts  showing 
that  the  tax  has  been  paid  in  labor49.  An  entry  in  the 
records  showing  that  a  tax  was  levied  for  the  succeeding 
year  renders  that  tax  void.  Parol  proof  is  inadmissible 
to  show  what  year  was  intended50.  A  statute  authorizing 
money  raised  in  one  surveyed  township  to  be  expended  in 
another  surveyed  township,  is  unconstitutional  as  violating 
the  rule  of  uniformity51.  Upon  a  similar  principle,  the 
township  cannot  levy  a  special  town  tax  to  pay  void  dis- 
trict orders,  though  the  township  originally  used  the  road 
district  money52. 

The  statute  provides  that  the  highway  commissioner 
may  purchase  road  machines  upon  a  petition  signed  by  a 
majority  of  the  owners,  in  interest,  of  the  taxable  prop- 
erty in  the  road  districts  interested.  The  township  is  not 
Where  there  is  a  failure  of  payment  the  remedy  is  not  by 
primarily  liable  for  the  purchase  price  of  these  machines, 
assumpsit,  but  by  mandamus  to  compel  the  proper  officers 
to  spread  the  tax,  or  pay  it  when  collected53. 

48.  Alcona    Co.    v.    White,  54  tracts  to  be  made  with  townships ; 
Mich.  503.  that  in  the  second   (C.  L.  §4194) 

49.  Lake  Superior,  etc.,  Co.  v.  the    legislature,     in     providing    a 
Thompson  Twp.,  56  Mich.  493.  means  whereby  road  districts  in  a 

50.  Mich.  Land,  etc.,  Co.  v.  Re-  township  might   purchase   a   road 
public  Twp.,  65  Mich.  628.  machine,     recognized     that     such 

51.  Manistee     Lumber    Co.    v.  districts    were    not    municipalities 
Springfield    Twp.,    92    Mich.    277,  which    could    assume    obligations, 
construing  Local  Act  No.  294  of  and  sue  and  be  sued,  and  provid- 
Laws  of  1891.  ed  a  way  of  payment  for  this  im- 

52.  McFarlan   v.    Cedar    Creek  plement  necessary  in  the  construc- 
Twp.,  93  Mich.  559.  tion  and  maintenance  of  highways 

53.  Pape  v.   Fenton   Twp.,   140  through    the     provisions    of    the 
Mich.   165,  172:    The  court  says:  statute.     No  proceeding  is  neces- 
"It  is  evident  from  a  reading  of  sary  to  determine  the  amount  of 
the  two  sections  that  the  first  (C.  such  indebtedness.  The  amount  is 
L.  §4193)  provides  for  these  con-  fixed  by  the  proper  township  of- 


171  TOWNSHIP  TAXES  >    I-1' 

The  fact  that  the  signatures  of  petitioners  to  purchase 
such  a  machine  were  procured  by  fraud  will  be  sufficient 
ground  to  refuse  a  mandamus  to  compel  the  levy  of  the 
tax  even  though  part  of  the  purchase  price  of  the  machine 
has  been  paid.  The  tax  payers  have  a  right  to  presume 
that  any  tax  levied  therefor  is  for  a  legal  and  binding  con- 
tract, and  they  will  *not  be  estopped  from  contesting  a 
future  installment  because  they  paid  the  first  installment54. 

§126.     Highway  Tax.    Action  of  Supervisors. 

The  action  of  the  board  of  supervisors  in  voting  such  a 
tax  will  be  presumed  to  be  warranted  by  statute.  To  ren- 
der such  a  tax  unlawful  it  must  affirmatively  appear  that 
the  money  was  to  be  used  for  purposes  not  allowed  1  y 
law55.  They  have  no  authority  to  raise  a  tax  to  be  expended 
upon  a  territorial  road  under  a  direction  of  their  commit- 
tee. The  duty  of  repairing  these  roads  is  upon  the  town- 
ships, and  the  law  does  not  seem  to  have  ever  required  or 
permitted  counties  to  keep  them  up.  They  are  state  roads 
and  not  county  roads;  and  the  state  has  not  imposed  the 
duty  of  maintaining  them  upon  counties,  though  it  did 
allow  the  counties  to  construct  them56.  Taxes  and  loans, 
when  authorized  to  be  raised  by  any  public  body,  must  be 
raised  under  the  implied  condition  that  they  are  to  be  applied 
to  the  public  uses  under  the  control  or  care  of  that  body. 
They  cannot  be  raised  for  the  purposes  or  uses  of  others 

ficers,  who  certify  to  the  board  of  v.  Keeney,  147  Mich.  1-1 
supervisors.     The    contract    fixes          55.     Stockle  v.  Silsbee,  41  Mich, 

the  purchase  price.     Payment  can  615. 

be    made    only    through     official          56.     Peninsular    Savings    Bank 

channels."  v.  Ward,  118  Mich.  87,  91. 
54.     Indiana  Road  Machine  Co. 


§  126  THE  LAW  OF  TAXATION  172 

unless  such  a  power  is  plainly  given,  and  such  a  power  can- 
not be  given  for  all  purposes57. 

Certain  highways  and  roads  are  put  under  the  control  of 
the  supervisors  by  the  constitution,  not  absolutely,  but  under 
legal  restrictions.  Those  legal  restrictions  have  confined 
them  to  state  and  territorial  roads.  Other  roads  are  put 
under  other  officers,  to  avoid  a  clashing  of  jurisdictions. 
The  county  board  can  have  no  occasion  to  raise  money  for 
other  than  its  own  roads,  and  must  exercise  its  own  judg- 
ment in  expending  it.  It  cannot  raise  money  to  be  paid 
over  to  the  town  officers,  without  any  definition  of  pur- 
poses, to  be  spent  under  the  direction  of  a  town  officer88. 
Neither  has  the  board  any  authority  to  grant  a  bonus  to  a 
contractor  upon  a  state  road,  the  statute  having  provided 
that  the  contractors  pay  should  be  in  swamp  lands59.  The 
limit  which  they  can  authorize  a  township  to  raise  or  bor- 
row in  any  year  for  repairing  roads,  is  $1000.00.  Any 
other  construction  of  this  statute  would  permit  the  town- 
ship to  exhaust  its  power  to  raise  money  for  years  to  come, 
and  leave  it  thereafter  powerless  to  raise  a  single  dollar60. 

The  board  of  supervisors  have  power  to  apportion  the 
expense  of  a  bridge  upon  the  town  line  between  adjoining 
townships;  and  the  fact  that  such  bridge  will  cost  more 
than  $1000.00  is  immaterial.  The  constitutional  limitation 
only  applies  to  sums  to  be  raised  by  the  entire  county.  The 
statutory  provision  that  townships  shall  not  raise  more  than 

57.  Attorney    General    v.    Bay      C.  L.  §§4050  et  seq.     Frenchtown 
County   Board,   34   Mich.   46,   48 ;       Twp.  v.  Monroe  Board,  89  Mich. 
In  Goldsmith  v.  Nankin,  15  Mich.      204. 

347,  the  power  of  the  board  was  59.     Davis  v.  Ontonogon  Board, 

held    limited    to    state    and    terri-  64  Mich.  404. 

torial  roads ;  Sage  v.  Stevens,  72  60.     Newaygo  County  Mfg.  Co. 

Mich.  638;  Boyce  v.  Auditor  Gen-  v.  Eichtenaw,  81  Mich."  416;  H.  S. 

eral.  90  Mich.  314.  §483,  sub.  15 ;  C.  L.  '97,  §2484.   See 

58.  Act  No.  62  of  Public  Acts  Lighting  and  Water  Works, 
of   1889;   3   H.   S.   §§1310   et  seq. 


173  TOWNSHIP  T.\\  ^  i-.'; 

$2000.00  for  building  or  repairing  any  bridge  unless  the 
question  shall  be  submitted  to  a  vote  of  the  electors,  does 
not  apply  to  bridges  upon  the  town  line,  authorized  by 
Act  No.  62  of  Public  Acts  of  1889,  C.  L.  '07,  i  !«»:.  1  ,•/  .*•</'"• 

$127.     School  Tax.     Purpose  of, 

The  legislature  intended  to  impose  the  performance  of 
official  duties  oh  those  elected  to  the  school  offices  without 
any  compensation.  A  school  district  has  no  power  to  levy 
a  tax  except  for  those  purposes  specified  by  statute,  and  no 
tax  levied  for  the  purpose  of  paying  the  director  or  any 
other  officer  of  the  district,  for  official  services,  is  specified 
in  the  statute,  and  hence  cannot  be  imposed  upon  the  in- 
habitants of  the  district62. 

§128.     Taxes  for  Higher  Education. 

Education,  not  merely  in  the  rudiments,  but  in  an  en- 
larged sense,  is  regarded  as  an  important  practical  advan- 
tage to  be  supplied  at  their  option  to  rich  and  poor  alike, 
and  not  as  something  pertaining  merely  to  culture  and 
accomplishment  to  be  brought  as  such  within  the  reach  of 
those  whose  accumulated  wealth  would  enable  them  to  pay 
for  it.  The  Ordinance  of  1787  for  the  government  of  the 
Northwest  Territory  provided  that  "schools  and  the  means 

61.    Article  10,  59  of  the  Con-  of    the    electO£S    of    such    county 

stitution  of  1850,  and  of  Beecher's  voting  thereon."     The  court   had 

Constitution   of   1908,   Art.   VIII,  heretofore  intimated  that    Art   »Vi 

5lO  is  as  follows:    "The  board  of  of   Public  Acts  of  1889  was   un- 

supervisors    of    any    county    may  constitutional ;      see      Frenchtnwn 

borrow  or  raise  by  tax  $1,000.00  Twp.  v.  Monroe  Board,  7:»  Mich. 

for     constructing     or     repairing  264.  and  Osborne  v.  Lindowe,  73 

public     buildings,     highways     or  Mich.    606.     In    Ionia    Board    v. 

bridges ;  but  no  greater  sum  shall  Circuit  Judge,  134  Mich.  412,  \h\\ 

be  borrowed  or  raised  by  tax  for  act  is  h»'d  constitutional. 
such    purposes    in   any   one   year,          f2      Hi-man  v.  School  DistrH. 

unless   authorized    by    a    majority  4  Mirh.  16*. 


1 128  THE  LAW  OF  TAXATION  174 

of  education  shall  forever  be  encouraged,"  and  endeavored 
to  make  provision  therefor  along  the  most  advanced  ideas 
that  then  prevailed  upon  the  subject  of  education63.  In 
1817  the  legislature  provided  for  the  establishment  of  the 
"Catholepistemiad,"  or  "University  of  Michigan,"  and  set 
aside  fifteen  per  cent  of  the  public  taxes  for  its  support64. 
This  act  continued  in  force  until  182185,  when  it  was  super- 
ceded  by  an  act  "for  the  establishment  of  a  university," 
with  power  to  establish  schools  intermediate  between  the 
common  school  and  the  university.  The  common  school 
was  provided  for  by  an  act  passed  in  182766.  This  act 
provided  that  every  township  containing  two  hundred  fami- 
lies or  householders  shall  be  provided  with  a  grammar 
school-master  of  good  morals,  well  instructed  in  the  Latin, 
French  and  English  .languages67.  It  is  therefore  evident 
that  the  common  or  primary  schools  are  not  limited  to  the 
teaching  of  English  branches  alone,  but  may  include  what 
is  known  as  "Higher  Education"  and  the  classics  as  well. 
The  Constitution  of  1835  contemplated  a  complete  sys- 
tem of  instruction,  beginning  with  the  primary  school  and 
ending  with  the  university;  and  no  restrictions  was  placed 
upon  the  districts  to  establish  schools  intermediate  between 
the  district  school  and  the  university.  The  Constitutional 
convention  of  1850  refused  to  adopt  a  provision  "that  the 
English  language  and  no  other  shall  be  taught  in  such 
schools,"  amending  it  so  as  to  read  that  instruction  shall  be 
''conducted  in  the  English  language"68.  The  inference  is 
irresistible  that  it  was  contemplated  that  high  schools, 
teaching  the  classics  and  higher  educational  studies,  would 

63.  Ordinance  of  1787.  67.     Code     of      1827,     p.      443; 

64.  Territorial    Laws,    Vol.  2,      Territorial  Laws.  Vol.  2,  p.  472 
p.  104.  68.     Debates   of    Convention   of 

65.  Code  of  1820,  p.  443.  1850,  pp.  269,  549. 

66.  Code  of  1327,  p.  445. 


I;.".  TOWNSHIP  TAXES  §129 

continue  to  be  established  in  the  districts  able  to  support 
them,  bringing  the  elements  of  a  classical  education  within 
reach  of  all  of  the  children  in  the  state.  Neither  by  our 
state  policy,  our  constitution,  or  in  our  laws,  are  the  primary 
school  districts  restricted  in  the  branches  of  knowledge 
which  their  officers  may  cause  to  be  taught,  or  the  grade 
of  instruction  that  may  be  given,  if  their  voters  consent  in 
regular  form  to  bear  the  expense  and  raise  the  taxes  for 
the  purpose60. 

£129.     School  Tax.     Authority  to  Raise. 

Under  the  statute,  the  board  of  education  may  determine 
the  necessary  amount  of  school  money  to  be  raised  when 
the  electors  fail  or  neglect  to  vote  upon  the  question.  The 
board,  under  this  act,  has  no  authority  to  act  in  raising 
money  until  the  question  has  actually  been  submitted  and 
the  electors  neglect  or  refuse  to  raise  the  tax.  Then,  the 
board  may  act.  It  is  jurisdictional  to  the  raising  of  the 
tax  that  it  first  be  submitted70.  It  would  seem  that  the 
record  of  a  school  meeting  would  be  good  in  evidence  al- 
though unsigned71.  An  apportionment  of  the  valuation,  by 
school  inspectors,  without  notice,  is  void72.  The  one  mill 

69.  Stuart   v.   School   Dist.,   3o  ship  board   cannot   include  a   tax 
Mich.  70,  75  et  scq.  for  fuel  in  the  school  tax. 

70.  §9.  Act  176  of  Public  Acts          71.     School    Dist.    v.    Clark.    90 
of     1891 ;     Auditor     General     v.  Mich.   435.     Tt  is   held   here  that 
Duluth.   etc.    Ry.,    116   Mich.    122,  facts  omitted  to  be  stated  in  the 
125.    In  Auditor  General  v.  Spar-  record  may  be  shown  by  parol,  as 
row.  116  Mich.  574,  596,  it  is  held  that   the  meeting  adjourned   'o  a 
that   a   school   tax   mav  he  voted  certain  date.     Tn  Taymouth  Twp. 
at   an   adjourned   meeting  of   the  v.     Koehler.     35     Mich.     24.     the 
regular  annual  meeting,  and  that  a"thority    of    the    highway    com 
the  tax  must  have  first  been  sub-  missioner  to  make  a  contract,  rrt 
mitted    to   the   electors,    (p    593V  being   of    record,    was    shown    by 
Tn  Weston  Lumber  Co.  v.  Munis-  parol. 

ire  Two..  123  Mich.  13*.  it  is  held          72.     Sch»v>l      Dist.     v.     School 
that  where  the  board  of  education      Dist.  63  Mich.  51. 
had  not   authorized  it.  the  town- 


§  130  THE  LAW    OF  TAXATION  176 

tax  is  assessed  upon  the  valuations  fixed  by  the  board  of 
review,  and  not  upon  the  equalized  valuation  fixed  by  the 
board  of  supervisors73. 

§130.     School  Taxes.    Miscellaneous. 

It  has  been  the  policy  of  the  Michigan  schoool  laws  that 
a  primary  school  district  should  not  contain  more  than  nine 
sections  of  land;  and  this  cannot  be  enlarged  from  un- 
organized territory,  though  it  may  be  from  other  organized 
districts.  Where  lands  are  unlawfully  included  the  school 
tax  is  void74.  Where  two  rolls  are  required,  one  for  city 
taxes  and  one  'for  state  and  county,  the  placing  of  school 
taxes  upon  the  state  and  county  roll  renders  them  invalid75. 
School  taxes,  not  assessed  one  year  because  not  prop- 
erly certified  to  the  clerk  in  time  to  be  placed  upon  the 
roll,  may  be  assessed  the  succeeding  year76.  The  graded 
schools,  or  high  school  districts,  are  not  limited  in  territory 
to  the  seize  of  a  primary  district  and  may  include  land  for 
taxation  more  than  two  and  one-half  miles  distant  from  the 
school  house77.  The  school  tax  must  be  spread  upon  all 
of  the  taxable  property  within  the  district;  and  where  a 
portion  of  the  district  is  omitted,  the  school  tax  is  void78. 
At  common  law,  the  township  was  not  liable  for  the  de- 
falcations of  its  officers79 ;  but  under  the  statute,  the  entire 
township  must  make  good  the  loss  of  a  school  tax  occas- 
sioned  by  the  defalcation  of  its  treasurer.  Mandamus  will 

73.  Deerfield    Twp.   v.   Harper,      §4704. 

115   Mich.  678.  77.     H.     S.     §5052;     C.     L.     '07, 

74.  Simpkins      v.      Ward,  45       §4665;       Keweenaw       Ass'n.       v. 
Mich.  559 ;  Coulter  v.  School  In-       School  Dist..  98  Mich.  437. 
spectors.  59  Mich.  391.  78.      Auditor    General    v.    Mo- 

75.  Folkerts      v.      Power,  42      Arthur.  87  Mich.  457,  465. 

Mich.  283.  79.     Hart  Twp.  v.  Oceana  Co. 

76.  Wilcox    v.    Eagle   Twp,    81       44   Mich.   417. 
Mich.  271 ;  H.  S.  §5090 ;  C.  L.  '67, 


177  TOWNSHIP  TAX  § 

be  to  compel  the  supervisor  to  spread  such  loss  upon  the 
tax  roll.  If  the  treasurer's  bond  is  good,  the  township 
suffers  no  loss.  If  poor,  it  is  the  fault  of  the  supervisor, 
the  authorized  agent  or  the  township80. 

§131.     Surveyor's  Tax. 

The  statute  authorizes  a  levy  to  be  made  in  some  cases, 
on  particular  parcels  of  land,  to  meet  the  cost  of  their  sur- 
vey. Presumptively,  this  tax  is  valid81. 

§132.     Dog  Tax. 

This  tax  is  not  a  burden,  charge,  or  imposition,  for  pub- 
lic uses  within  the  constitution.  This  tax  is  a  regulative 
expedient  favoring  repression  of  private  mischief  and 
promoting  the  redfess  of  private  injuries.  It  is  a  species 
of  legislation  which  pertains  to  another  department  of 
power,  and  when  the  state  in  pursuing  its  duty  to  accommo- 
date as  far  as  practicable  the  desire  and  the  right  to  keep 
dogs,  to  the  more  beneficial  right  of  breeding  and  keep- 
ing sheep,  has  seen  fit  to  apply  the  method  of  the 
statute.  This  act  is  an  exertion  of  the  police  power,  and 
no  reason  is  perceived  for  denying  its  validity82.  It  is 
immaterial  that  the  tax  may  be  laid  in  cities  where  sheep 
are  not  bred  or  raised.  In  consequence  of  the  well  known 
liability  of  dogs  to  break  through  all  discipline,  and  because 
also  of  their  liability  to  madness,  it  has  been  customary 
always  to  make  dogs  the  subject  of  special  and  particular 

80.  Smith  v.  Jones,   136  Mich.  Horn    v.    People,    46    Mich.    183; 
532.  Blair  v.  Forehand,  100  Mass.  136; 

81.  Silsbee     v.      Stoeckle,     44  Carter    v.     Dow,    16    Wis.    298; 
Mich.  561;  C.  L.  1871,  5595;  C.  L.  Tenney    v.    Lenz,    16    Wis.    56« ; 
'97.  52594.  Mitchell  v.  Williams.  27  Ind.  62; 

82.  Act  198  of  Public  Acts  of  Morey  v.   Brown,  42   N.   H.  373: 
1877;  Act  214  of  Public  Acts  ot  Wolf  v.  Chalkers.  31   Conn.  121: 
1S89;  3  H.  S.  552132a-2132e ;  Van  Hendrie  v.  Kalthoff,  48  Mich.  30«. 
(12) 


§§  133,  134  THE   LAW   OF   TAXATION  178 

regulations.  Under  the  police  power,  the  legislature  has, 
since  the  organization  of  the  state,  from  time  to  time  placed 
restrictions  upon  the  keeping  of  dogs,  and  by  legislative 
enactment  provided  regulations  for  their  keeping  for  the 
safety  of  individuals  and  sheep  breeders  in  the  care  of  their 
flocks83. 

§133.     Fence  Viewer's  Tax. 

At  common  law  no  obligation  to  build  or  maintain  a 
fence  for  the  convenience  of  an  adjoining  owner  or  pro- 
prietor existed.  The  statute,  being  in  derogation  of  the 
common  law,  must  be  strictly  construed.  By  its  express 
terms,  it  applies  only  to  lands  inclosed  by  fences.  If  a 
land  owner  chooses  not  to  occupy  that  portion  of  his  land 
adjoining  his  neighbor,  or  does  not  care  to  inclose  it  for 
his  own  purpose,  the  law  does  not  compel  him  to  do  it  for 
another84. 

§134.     Agricultural  Society  Tax. 

The  statutory  requirements  must  be  strictly  followed. 
A  condition  precedent  to  raising  this  tax  is  the  filing  of 
proof  with  the  board  that  the  society  has  raised  $100.0085. 
The  certificate  required  under  this  law  requires  a  certificate 
signed  not  only  by  the  secretary  of  the  company,  but  also 
by  its  president86.  A  general  township  tax  for  improving 
fair  grounds  is  illegal,  but  so  far  as  it  is  paid  in  it  should 
be  applied  to  the  purposes  for  which  it  was  raised  when 
debts  had  been  incurred  upon  the  strength  of  the  tax87. 

83.  Longyear  v.  Buck,  83  Mich.          85.     C.  L.   1871,  §1687 ;   Hall  v. 
236,  240.  Kellogg,.  16   Mich.    135;    Harding 

84.  H.     S.     §797 ;     C.    L.     '97,      v.  Bader,  75  Mich.  316. 

§2416 ;    Lantis    v.    Reithmiller,    95  86.     Hogelskarrip   v.   Weeks,    37 

Mich.  45;   Bechtel  v.   Neilson,   1!>  Mich.  22. 

Wis.  59;   Bills  v.  Belknap,  38  la.  87.     French      v.      South      Arm 

225;  Bland  v.  Hixenhaugh,  39  Ta.  TW|>..  122  Mich.  593. 

536. 


i;:»  TOWNSHIP  TAXES  §135 

§135.     Bounty  Tax. 

Under  Act  86  of  Laws  of  1865,  the  various  townships 
were  authorized  to  levy  a  tax  to  pay  the  bounties  which 
had  been  offered  to  encourage  enlistments  in  the  Federal 
army.  The  purpose  of  this  tax  was  legal  and  patriotic 
and  the  Act  is  constitutional88.  The  Act  of  1865  did  not 
cover  advances  made  by  individuals  upon  their  own  ac- 
count; and  not  upon  the  credit  or  authority  of  the  muni- 
cipalities89. A  prior  act,  legalizing  bounties  already  voted 
is  held  valid,  though  there  was  no  provision  at  the  time 
the  vote  was  taken  as  to  giving  notice,  and  the  regular 
notice  of  special  meetings  of  electors  was  not  given90. 

88.  Smith    v.     Crittenden,     16      2^4. 

Mich.  152.  90.     Laws    of    1863,    pp.    92-95; 

89.  Miller  v.  Grandy,  13  Mich.      Crittenden  v.  Robertson,  13  Mich. 
590;  Gale  v.  Supervisor,  16  Mich.      58,  62. 


CHAPTER  VIII. 
THE  ROLL. 


§136.  Determining  Amount  of   County  Tax. 

§137  Misappropriation  of  Money. 

§138.  Certifying  Taxes. 

§139.  Certificate  from  Board. 

§140.  Collector's  Roll. 

§141.  Extension  of  Taxes. 

§142.  Excess  of  Taxes. 

CROSS-REFERENCES. 

Certificate  of  Special  Assessment,  §356.  Confirmation  of  Special 
Assessment,  §357.  Description  of  Property  in,  §§81-93.  Description, 
In  Re  Drains,  §283.  Presumptions  from,  §§238-241.  Roll  for  Drain. 
§289.  Roll  for  Special  Assessment,  §§349-351.  Signing,  §236. 


§136.     Determining  Amount. 

The  designation  of  a  percentage  on  a  definite  sum  is  just 
as  certain  if  it  were  calculated  and  stated  in  figures,  and 
leaves  nothing  to  be  done  to  make  it  known  except  a  simple 
calculation1.  The  board  of  supervisors  cannot  raise  money 
to  be  turned  over  to  the  townships,  without  stating  the  pur- 
pcse  thereof2,  nor  can  it  raise  money  for  highways  other 
than  state  and  territorial  roads3.  The  board  may  adopt 
the  report  of  the  finance  committee  as  to  sums  necessary 
to  be  raised;  and  such  action  is  valid4.  The  board  cannot 


1.  C.   L.   '97,   §3860,   Tax   Law,  3.     Boyce    v.    Auditor    General, 
§37.       Hubbard     v.     Winsor,     15  90  Mich.  314;  Sage  v.  Stevens,  72 
Mich.  146,  154 ;  Boyce  v.  Auditor  Mich.  638 ;  Gamble  v.  Stephens,  78 
General,  90  Mich.  314.  Mich.  302. 

2.  Attorney     General     v.     Bay  4.     Silsbee  v.  Stoeckle,  44  Mich. 
County,  34  Mich.  46. 


181  THE  ROLL  >    I'M 

levy  a  tax  to  pay  a  sheriff  a  salary  in  lieu  of  his  legal  fees. 
It  is  essential  to  public  safety  that  the  administration  of 
criminal  justice  be  kept  as  far  as  possible  free  from  any 
extraneous  meddling  or  interference;  and  if  the  supervisors 
or  any  other  body  can  have  a  voice  in  the  payment  of  the 
sheriff's  charges,  it  is  evident  that  his  subservience  to  them 
is  invited,  if  not  compelled,  and  that  they  can  have  a  good 
deal  to  do  with  the  pursuit  or  exemption  of  criminals.  If 
the  principle  is  once  admitted  that  any  deviation  can  be 
had  from  the  statutory  allowances,  the  temptation  is  directly 
offered  to  the  sheriff  to  make  himself  agreeable  to  the  board 
on  the  one  hand,  and  to  shirk  unprofitable  duties  on  the 
other5.  The  board  may  direct  the  raising  of  the  county 
tax  in  one  gross  sum,  though  it  might  be  more  satisfactory 
were  the  items  of  their  estimate  set  forth  in  their  resolu- 
tion8. The  raising  of  the  county  tax,  and  apportionment 
of  state  and  county  taxes,  must  appear  of  record.  It  will 
not  be  sufficient  for  the  clerk  of  the  board  to  certify  to  such 
taxes7.  After  the  board  have  fixed  the  amounts  to  be 
raised,  and  equalized  the  various  townships,  the  work  of 
apportionment  is  purely  ministerial8.  The  board  cannot 
authorize  the  construction  of  a  public  building,  or  make  a 
valid  contract  for  the  erection  of  a  public  building  with- 
out the  concurrence  of  two-thirds  of  the  supervisors  elect8. 

§137.     Misappropriation  of  Money. 

The  mere  allowance  of  illegal  demands  by  the  board  of 
supervisors  the  preceding  year  will  not  invalidate  the  levy 

561 ;    Boyce    v.    Auditor    General,  7.     Boyce  v.   Sebring,   66   Mich. 

90  Mich.  314.  210. 

5.  Hewitt   v.   White,   78   Mich.  8.     Fay  v.  Wood,  f>.">  Mich.  .193. 
117;  Collins  v.  Rea,  127  Mich.  273.  9.     Wayne  Co.  v.  Circuit  Judge. 

6.  Weston      Lumber      Co.      v.  ill   Mich.  33. 
Munising  Twp.,  123  Mich.  138. 


§  138  THE  LAW  OF  TAXATION  182 

of  a  subsequent  year  unless  it  appear  that  such  illegal  de- 
mands were  included  within  the  levy.  Should  the  subse- 
quent tax  levy  be  rendered  illegal  because  the  board  of  a 
preceding  year,  had  rendered  it  necessary  to  raise  a  larger 
amount  the  subsequent  year,  it  is  obvious  that  the  county,  by 
a  single  misappropriation  of  money,  would  lose  all  power  to 
levy  and  collect  taxes  thereafter10.  Where  it  appears  from 
the  records  of  the  board,  however,  or  can  be  proved,  that 
part  of  the  tax  ordered  raised  is  for  an  illegal  purpose,  as  a 
bonus,  the  township  supervisors  will  not  be  obliged  to  spread 
such  tax11.  While  the  board  may  borrow  money  for  cer- 
tain specified  purposes,  it  cannot  borrow  money  to  defray 
the  current  expenses  and  charges  of  the  county.  Money 
for  this  purpose  must  be  raised  by  taxation  only12. 

§138.     Certifying  Township  Taxes. 

Although  the  statute  required  all  state,  county  and  town- 
ship taxes  to  be  certified  by  the  clerk  of  the  board  to  each 
supervisor,  yet  the  neglect  so  to  do  is  a  formal  defect, 
healed  by  the  statute13.  Where  a  sum  of  money  has  been 
lawfully  voted  for  township  purposes  the  failure  of  the 
board  to  direct  its  levy  will  not  invalidate  such  tax14 ;  but  the 

10.  Wright     v.      Dunham,     13      §38.      Pillsbury    v.    Auditor    Gen- 
Mich.    414;    Peninsular    Iron    Co.       eral,  26  Mich.  245, 

v.    Crystal    Falls   Twp.,    60   Mich.          14.     Upton      v.      Kennedy,      36 

510;    Boyce    v.    Auditor    General,  Mich.    215;    Auditor    General    v. 

90  Mich.  314 ;  Clee  v.  Trenton,  108  McArthur,  87  Mich.  457 ;  Robbins 

Mich.  29.3.  v.    Barron,   33   Mich.   124;    Boyce 

11.  Supervisors       v.       Mentor  v.    Sebring,    66    Mich.    210,    218; 
Twp.,    94    Mich.    386;    Wager    >.  Alvord   v.    Collins,   20   Pick.   418; 
Brandow,  104  Mich.  39.    In  Boyce  Hunt    v.    Chapin,    42    Mich.    24; 
v.    Sebring,   66   Mich.   210,   215.  a  Auditor  General  v.  Hill,  98  Mich, 
resolution  granting  illegal  salaries,  327.     In  Post  v.  Harris,  95  Mich, 
passed  after  the  county  levy  had  321,    it    is    held    that    a    township 
been   properly   estimated,    is   held  drain  tax  stands  upon  a  different 
not  to  invalidate  the  county  tax.  footing    from    general    taxes     (3 

12.  Supervisors  v.  Warren,  98  H.    S.,    §1740f4,)    and    cannot   be 
Mich.  144.  assessed    unless    ordered    by    the 

13.  C.  L.  '97,  §3861,  Tax  Law,  Board. 


183  THE  ROLL  §  139 

board  cannot  order  the  levy  of  a  township  tax  unless  it  has 
been  properly  certified  to  them15.  The  late  decisions  hold 
that  the  supervisor  cannot  question  the  legality  of  taxes 
certified  to  him  from  the  board  of  supervisors,  but  must 
spread  them  as  certified16;  but  in  an  extreme  case  where 
the  board  attempted  to  grant  a  bonus,  a  supervisor  was 
held  justified  in  refusing  to  spread  such  tax17.  It  is  not 
necessary  that  the  board  make  an  examination  of  the  papers 
and  certificates  submitted  to  them  by  the  townships  show- 
ing the  amount  to  be  raised  therein,  or  that  it  heard  and 
considered  all  objections  made  thereto  by  persons  affected 
thereby.  The  board  has  nothing  to  do  with  the  ordering 
of  township  taxes.  While  it  has  authority  to  examine  the 
returns  and  hear  disaffected  parties,  it  is  with  a  view  to 
having  the  proceedings  perfected,  if  irregular.  The  failure 
to  do  this  is  an  irregularity  at  most18. 

§139.     Certificate  From  Board.     Collectors  Roll. 

The  certificate  from  the  clerk  of  the  board  of  supervisors 
to  the  supervisor  forms  no  part  of  the  assessment  roll,  and 
therefore  is  not  required  to  be  copied  into  the  collectors 
roll19.  Therefore,  it  will  not  be  presumed  that  because  the 
collector's  roll  has  no  such  certificate  attached  that  it  was 
missing  on  the  original  roll20,  nor  will  the  copy,  if  any,  on 
the*  collector's  roll,  be  evidence  of  the  original  upon  the 

15.  Boyce   v.   uditor   General.       tor  Twp.,  94  Mich.  386. 

90  Mich.  314.  In  Boyce  v.  Sebring,  18.     Auditor  General  v.  Hill,  98 

66  Mich.  210,  it  is  held  that  evi-  Mich.  327. 

dencc   of   the   levy   of   state   and  19.     See    Extension    of    Taxes 

county  taxes  must  he  shown  other  8141,   Post.   Tweed   v.   Metcalf.  4 

than  by  the  certificate  of  the  clerk.  Mich.  579,  597 ;  Boyce  v.  Sebring. 

16.  C.    L.    '97,    §3860.      Union  56  Mich.  210. 

School  Dist.  v.  Parris,  97  Mich.  20.  Bird  v.  Perkins,  33  Mich. 
593.  28. 

17.  Cheboygan   Board  v.  Men- 


§  140  THE  LAW  OF  TAXATION  184 

supervisors  roll21.     Neither  is  the  collectors  roll  evidence 
of  any  endorsements  upon  the  original  roll22. 

§140.     Collector's  Roll. 

The  taxes  assessed  should  be  extended  upon  the  corrected 
assessment  roll  which  the  supervisor  receives  from  the  board 
of  supervisors,  after  its  authentication.  No  other  roll  is 
brought  to  the  attention  of  the  board,  and  this  alone  re- 
ceives the  sanction  of  the  board.  With  this  before  him, 
and  the  requisite  certificates  and  statements  in  regard  to 
the  taxes  to  be  levied,  and  their  destination,  the  supervisor 
is  required  to  proceed  to  assess  ''according  and  in  propor- 
tion to  the  individual  and  particular  estimate  and  valuation 
specified  in  the  assessment  roll."  He  is  next  to  make  the 
collection  roll  in  his  office.  As  this  correspondence  is  in- 
dispensable in  the  first  instance,  its  continuance  is  equally 
indespensable.  The  symmetry  of  the  proceedings,  the  con- 
sistency of  the  records,  and  the  dependence  of  the  collec- 
tion roll  upon  the  first  roll  and  their  legal  connection,  alike 
require  it.  As  the  first  is  to -remain  in  the  supervisors  office 
as  a  public  record  or  memorial,  so  the  collection  roll  is  to 
go  ultimately  to  the  county  treasurer's  office,  to  be  kept 
for  the  same  purpose. 

The  entire  theory  of  the  system  and  all  the  regulations, 
contemplate  that  these  documents  shall  be  and  continue 
substantially  alike,  and  in  all  essential  particulars  speak 
the  same  language  when  referred  to.  No  lawful  change 
can  be  made  in  the  collection  roll  unless  warranted  by  the 
state  of  the  roll  having  the  sanction  of  the  board  of  super- 
visors; and  consequently,  the  collection  roll  cannot  legally 

21.     Hecock  v.  Van   Dusan.   80          22.     Putnam  v.  Fife  Lake  Twp., 
Mich.   359;   Redding  v.  Lamb,  81       45  Mich.  125. 
Mich.  318. 


185  THK  ROLL  ?    1  1" 

be  changed  so  as  to  be  in  substantial  disagreement  with  the 
other.  This  provision  relative  to  the  correspondence  of  the 
original  and  copy  of  the  assessment  rolls  is  enacted  for  the 
benefit  and  protection  of  the  tax  payer,  as  well  as  for  the 
protection  of  the  public.  It  was  designed  to  protect  the 
tax  payer  against  unauthorized  meddling  with  the  amount 
of  taxes  assessed  against  him,  after  the  roll  has  passed  from 
the  hands  of  the  supervisor.  It  is  also  designed  to  protect 
the  township  against  the  loss  or  destruction  of  the  collec- 
tion roll,  and  to  afford  means  for  the  collection  of  the  taxes 
assessed23. 

Statutory  Provisions. 

C.  L.  '97,  §3862,  after  providing  that  the  super- 
visor shall  assess  the  taxes  in  proportion  to  the  valua- 
tions on  the  roll,  continues:  "For  the  purpose  of 
avoiding  fractions  in  computation,  the  assessor  may 
add  to  the  amount  of  the  several  taxes  to  be  raised 
not  more  than  one  per  cent;  said  excess  shall  belong 
to  the  contingent  fund  of  the  township;  such  taxes 
shall  be  entered  in  separate  columns,  as  follows:  All 
school  taxes  and  the  one  mill  tax  in  one  column,  high- 
way taxes  in  another,  township  taxes  in  another, 
county  taxes  in  another,  and  the  state  taxes  in  an- 
other column ;  and  if  other  taxes  are  at  any  time  re- 
quired to  be  raised,  they  shall  be  placed  in  separate 
columns.  The  total  of  all  the  taxes  assessed  against 
any  one  valuation  or  parcel  of  property  shall  be  added 
and  carried  out  in  the  last  column  upon  the  right  hand 
side  of  such  roll." 


23.    Ferton  v.  Fuller,  33  Mich.      203;  Seymour  v.  Peters.  67  Mich. 

415,  417. 


§§  141,  142  THE  LAW  OF  TAXATION  186 

When  there  is  a  failure  of  duty  on  the  part  of  the  super- 
visor to  extend  the  taxes  at  all  upon  the  original  roll,  but 
he  does  extend  them  upon  the  collectors  roll  to  which  he 
attaches  his  warrant,  such  failure  will  not  vitiate  the  tax 
unless  it  appear  that  the  tax  payer  is  prejudiced  by  such 
action24. 

§141.     Extension  of  Taxes. 

Under  the  statute,  the  several  taxes  levied  shall  be 
assessed  in  separate  columns;  all  school  taxes  and  the  one 
mill  tax  in  one  column,  highway  taxes  in  another,  state 
taxes  in  another,  county  taxes  in  another,  and  any  other 
taxes,  if  levied,  in  separate  columns26.  Where  the  taxes 
are  not  distinguished,  or  several  taxes  required  to  be 
separately  extended  are  blended  in  one  aggregate  under 
one  heading,  only  that  portion  of  the  tax  will  be  valid 
which  should  have  been  separately  assessed  under  the  name 
of  the  heading  of  the  column26.  A  fund  for  building  or 
repairing  bridges  is  distinct  and  separate  from  the  high- 
way tax27. 

§142.     Excess  of  Taxes. 

Prior  to  judicial  determination  of  the  legality  of  the 
taxes  levied,  a  tax  payer  might  pursue  one  of  several 

24.  Ludington  v.  Escanaba,  115       section. 

Mich.  288,  290.    In  West  Michigan  26.     In  Case  v.  Dean.  16  Mich. 

Lumber    Co.    v.    Dean,    73    Mich.  12,  31,  it  is  held  that  there  is  no 

459,  it  is  held  that  the  fact  that  presumption  that  the  one  mill  tax 

the  collector  used  the  original  roll  was  included  in  an  excessive  town 

to  collect  from,  instead  of  a  copy,  or  state  tax.  Stockle  v.  Silsbee,  44 

cannot   be   complained   of   by  the  Mich.  561 ;  Tillotson  v.  Weber,  96 

tax    payer.      There    is    a    similar  Mich.    145,    155.      (Highway   and 

holding    in    Auditor    General    v.  township  tax  blended.) 

Hutchinson,  113  Mich.  245.  27.     Quinlan    v.    Manistique,    85 

25.  C.    L.    '97    §3862.    in    prio>  Mich.  23. 


187  THE  ROLL  §  142 

methods  to  avoid  the  payment  of  the  illegal  excess.  He 
could  pay  the  entire  tax  under  protest  and  recover  back 
the  excess ;  or,  upon  real  estate,  he  could  file  a  bill  in  equity 
to  quiet  title  upon  tendering  the  taxes  legally  chargeable 
upon  the  land;  or  he  could  allow  his  premises  to  be  sold 
for  taxes  and  either  file  a  bill  in  equity  to  remove  the  cloud 
or  he  could  avoid  the  tax  deed  when  assailed  in  ejectment 
or  in  an  action  at  law.  The  rule  "ilc  iniiiintis  non  cnrt.it 
lex"  does  not  apply  in  these  proceedings.  The  authority 

• 

to  tax  is  fixed  by  statute  and  must  be  strictly  pursued.  The 
supervisor  has  no  authority  to  tax  at  his  own  discretion, 
but  can  only  assess  such  taxes  as  are  properly  certified  to 
him  for  that  purpose,  and  such  as  the  law  makes  it  his  own 
immediate  duty  to  assess  without  such  certificate.  Any 
material  excess,  therefore,  in  state,  county,  or  township 
tax,  will  render  all  of  the  taxes  in  that  column  void  on  a 
tax  sale.  Though  the  excess  is  small,  it  cannot  be  dis- 
regarded and  would  avoid  a  tax  deed  under  the  old  tax 
laws28.  The  assessment  by  the  supervisor  of  one  per  cent 

28.  Case  v.  Dean,  16  Mich.  12,  Detroit,  41  Mich.  128.  In  Herrick 
32.  The  excess  was  6  cents.  Lake  v.  Big  Rapids,  53  Mich.  554,  it  is 
Superior  Ship  Canal  Co.  v.  held  that  when  the  assessment 
Thompson,  56  Mich.  493,  498;  upon  any  particular  class  of  pfop- 
Stockle  v.  Silsbee,  44  Mich.  561 ;  erty  is  clearly  separable  and 
Lacey  v.  Davis,  4  Mich.  140 ;  identified  upon  the  roll,  as  a  tax 
Buell  v.  Irwin,  24  Mich.  145 ;  on  an  unpaid  legacy,  the  norv 
Wattles  v.  Lapeer,  40  Mich.  624.  liability  of  such  property  to  tax- 
In  Rogers  v.  White,  68  Mich.  10,  ation  can  be  shown  in  assumpsit 
the  excess  was  $25.00  upon  the  to  recover  back  the  tax.  In  Bor- 
township.  Sinclair  v.  Lamed,  51  roughs  v.  Goff.  64  Mich.  464.  the 
Mich.  335 ;  Hall  v.  Kellogg.  16  excess  was  5  or  6  cents.  Williams 
Mich.  135;  Tillotson  v.  Webber,  v.  Mears,  61  Mich.  86.  In  Boyce 
90  Mich.  145,  153;  Seymour  v.  v.  Sebring,  66  Mich.  210.  the  ex- 
Perers,  67  Mich.  416.  The  excess  cess  was  $3.10.  in  Bailey  v.  Hay- 
was  45  cents.  In  Edwards  v.  wood,  70  Mich.  188,  the  excess 
Taliafero.  34  Mich.  13,  $12,000.00  upon  the  township  was  $59.65.  In 
was  illegally  upon  the  tax  rolls  of  Gamble  v.  Stevens,  78  Mich.  303, 
the  city  of  Detroit;  Hammontree  the  excess  was  $1000.00  upon  the 
v.  Lott,  40  Mich.  190;  Connors  v.  county.  In  Wager  v.  Bowley.  109 


§  142  THE  LAW  OF  TAXATION  188 

additional  to  avoid  fractions,  .and  his  directions  in  relation 
thereto  in  his  warrant,  do  not  invalidate  the  tax**. 

Mich.  388,  the  excess  was  $200.00          29.     Grand  Rapids  v.  Wellman, 
upon  the  county.    Wager  v.  Bow-      85  Mich.  234. 
ley,  104  Mich.  38. 


CHAPTER  IX. 

COLLECTIONS  OF  LIEN  FOR  AND  LIABILITY 
FOR  TAX. 


8 143.  Lien  for  Taxes  Upon  Real  Estate. 

5144.  Lien  Upon  State  Swamp  Lands. 

§145.  Lien  for  Drain  Tax. 

5 146.  Lien  for  Tax  Upon  Personal  Property. 

§147.  Enforcement  of  Lien  upon  Personal  Property. 

§148.  Chancery  Sale. 

§149.  Warrant. 

§150.  Warrant,  Extension  of 

§151.  Collector. 

§152.  Bond  of  Collector. 

§153.  Liabilty  of  Collector. 

§154.  Liability  for  Tax. 

§155.  Payment. 

§156.  Certificates  as  Payment. 

§157.  Voluntary  Payment. 

§158.  Involuntary  Payment. 

§159.  Common  Law  Protest.  • 

§160.  Statutory  Protest. 

§161.  Demand   for  Tax. 

§162.  Tax  Receipts. 

§163.  Levy. 

5 164.  Levy  Upon  Railroad  Property. 

§165.  Sale  Under  Levy. 

CROSS-REFERENCES. 

Equitable  Actions  In  Re.  §§430-440.      Foreclosure    of    Tax    Lien. 

§377-404.  Lien  of  Void   Tax  Title   Holder,   §211.     Redemption,   §199. 
Refunding  of  Taxes,  §§200,  212.     State  Tax  Lands,  §197. 


§143.     Lien  for  Taxes  Upon  Real  Estate. 

Up  to  the  time  fixed  by  the  statute  for  delivering  the  roll 
to  the  collector,  there  is  no  tax  which  can  be  paid  by  or  to 
any  one,  nor  up  to  this  time  could  the  amounts  upon  the 
several  parcels  be  ascertained,  and  the  land  is  just  as  clear 


§  143  THE  LAW  OF  TAXATION  190 

from  any  charge  or  lien  on  account  of  the  current  year 
as  it  is  for  any  future  year.  The  tax  cannot,  therefore,  in 
the  nature  of  things,  constitute  before  that  time,  an  in- 
cumbrance  upon  the  land.  There  is  simply  a  liability  to 
future  taxation, — a  liability  which  always  exists, — and  it 
can  make  no  difference  in  principle,  so  far  as  relates  to  the 
question  of  incumbrance,  whether  it  is  liable  to  be  taxed 
one  month  or  year  or  ten  years  hence.  The  provision  mak- 
ing the  tax  a  charge  against  the  owner  the  second  Monday 
in  May,  is  for  the  benefit  of  the  state,  and  enables  the  col- 
lector to  levy  upon  the  personal  property  of  the  then  owner, 
and  was  intended  to  apply  to  non-residents  and  bring  them 
on  a  parity  with  the  resident  owners.  As  between  a  vendor 
and  a  vendee,  it  is  the  duty  of  the  vendee  to  pay  the  tax  if 
he  acquired  the  property  any  time  before  the  lien  attached1. 

Statutory  Provisions. 

C.  L.  '97,  §3863,  Tax  law,  §40:  "The  taxes  thus 
assessed  shall  become  at  once  a  debt  to  the  township, 
ward  or  city  from  the  persons  to  whom  they  are 
assessed,  and  the  amounts  assessed  on  any  interest  in 
real  property  shall,  on  the  first  day  of  December,  be- 
come a  lien  upon  such  real  property,  and  the  lien  for 
such  amounts,  and  for  all  interest  and  charges  thereon, 
shall  continue  until  payment  thereof.  And  all  per- 
sonal taxes  shall  also  be  a  lien  on  all  personal  prop- 

1.     C.  L.  '97,  §3363:    See  §203,  the    grantor    was    liable    to    the 

post,    as    to    lien    of    mortgagee.  grantee  therefor,  the  deed  to  the 

Harrington   v.    Hillard,    27    Mich.  property    having    passed    on    that 

271;   Jacobs  v.   Union   Trust   Co.  day.     In    Detroit    v.    Patten,    143 

15    L.    N.    913.       In    Eaton    v.  Mich.  243,  it  is  held  that  the  tax 

Cheesebrongh,  82  Mich.  214,  it  is  becomes  a  personal  charge  against 

held   that   the   Detroit   City  taxes  the  owner  on  Apr.  1st,  and  he  will 

become  a  lien  on  July  1st,  when  be  liable  though  he  remove  from 

the  collector  receives  the  roll,  and  the  city  on  Apr.  2nd. 


11>1    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §   111 

erty  of  such  persons  so  assessed  from  and  after  the 
first  day  of  December  in  each  year,  and  shall  take  pre- 
cedence of  any  sale,  assignment  or  chattel  mortgage, 
levy  or  other  lien,  on  such  personal  property,  executed 
or  made  after  said  first  day  of  December,  except  where 
such  property  is  actually  sold  in  the  regular  course  of 
trade." 

C.  L.  '97,  §3837,  Sub.  8,  provides  for  a  lien  upon 
property  in  transit  where  the  tax  is  paid  by  the  person 
chargeable  therewith,  not  being  the  owner,  and  also 
provides  for  recovering  such  sum  so  paid  by  suit  in 
attachment  or  garnishment. 

C.  L.  '97,  §3882,  Tax  law,  §59,  provides  that  the 
expense  of  advertising  delinquent  tax  lands  for  sale 
shall  be  a  lien  upon  such  lands  from  the  1st  day  of 
October  preceding  the  sale. 

C.  L.  '97,  §3892,  Tax  law,  §69,  provides  that  the 
withholding  lands  of  incompetents  under  guardianship 
from  sale  shall  not  prejudice  the  lien  of  the  state. 

C.  L.  '97,  §3883,  Tax  law  §60,  provides  that  the 
lien  of  the  state  for  unpaid  taxes  upon  lands  returned 
delinquent  shall  be  a  first  or  preferred  claim  upon  such 
lands,  not  to  be  set  aside  or  annulled  except  for  the 
causes  specified  by  statute. 

C.  L.  '97,  §3890,  Tax  law  §67,  provides  that  pay- 
ment of  the  amount  decreed  against  the  land  shall  be 
a  discharge  of  the  lien. 

The  lien  for  unpaid  legal  taxes  still  remains,  though  for 
some  reason  the  collection  could  not  be  enforced.  It  is 
within  the  power  of  the  legislature  to  subsequently  provide 
for  the  enforcement  of  this  lien.  Thus,  under  the  tax  law 
of  1882,  an  assessment  could  be  made,  but  could  not  be  en- 


§  143  THE  LAW  OF  TAXATION  U)2 

forced,  but  the  lien  was  enforced  under  the  law  of  18872. 
The  lien  also  continues  in  favor  of  the  state  as  to  the  legal 
taxes  paid,  although  the  tax  deed,  or  sale,  is  held  void3. 
In  other  words,  this  lien  is  purely  statutory,  and  can  only 
be  enforced  by  virtue  of  a  statute  authorizing  it.  It  does 
not  enure  to  the  benefit  of  a  purchaser  at  an  irregular  or 
illegal  tax  sale  unless  expressly  provided  by  statute;  and 
without  such  statutory  provision,  the  tax  purchaser  has  no 
remedy  for  the  money  paid  for  the  tax  deed  or  taxes  where 
the  tax  sale  is  set  aside4. 

The  lien  for  taxes  for  years  prior  to  those  for  which 
the  land  was  sold,  is  extinguished  when  the  state  gives  a 
tax  deed,  although  such  taxes  have  not  been  paid.  The 
purchaser  takes  all  of  the  title  of  the  state;  and  the  land 
cannot  thereafter  be  made  chargeable  with  unpaid  back 
taxes5.  At  one  time,  a  lien  existed  in  favor  of  the  pur- 
chaser at  an  invalid  tax  sale,  but  no  such  lien  is  provided 
for  in  the  tax  law  of  18936.  By  virtue  of  the  lien  for 
taxes,  the  township  may  institute  suit  to  recover  unpaid 
taxes7.  Where  property  is  sold  for  taxes  and  bid  in  by 

2.  Croskery      v.      Busch,      116  Miss.    681 ;    People    v.    Henckler, 
Mich.  288;  Sage  v.  Auditor  Gen-  137  111.  580.    In  West  Mich.  Lum- 
eral,  72  Mich.  638;  Humphrey  v.  her  Co.  v.  Dean,  73  Mich.  459,  it 
Auditor  General,  70  Mich.  292.  is  held   that  the  lien  attached  as 

3.  Auditor  General  v.  Patter-  soon   as  the   supervisor   extended 
son,  122  Mich.  38 ;  Auditor  Gen-  the   taxes  upon   his   original   roll, 
eral  v.   Sherman,   136  Mich.   157 ;  When    the    statute    authorizes    it, 
Auditor  General  v.  Carpenter,  138  the  lien  enures  to  the  benefit  of 
Mich.    669 ;    Auditor    General    v.  the   tax   title   purchaser ;    Peet    v. 
Newman,  135  Mich.  288.  Obrien,    5    Neb.    360;    Bryant    v. 

4.  Bangor      Twp.      v.      Smith  Estabrook,  16  Neb.  222;  Hunt  v. 
Transportation     Co.,     112     Mich.  Currey,    37    Ark.    104;    Flinn    v. 
601 ;  Muskegon  City  v.  Muskegon  Persons.   60   Ind.   573 ;    Fairbanks 
County,  123  Mich.  272,  275.  v.  Williams,  24  Kans.  19;  Russell 

5.  Auditor  General  v.  Clifford,  v.  Hudson,  28  Kans.  10"0;  Thomp- 
143  Mich.  626.  son  v.  Savage,  47  la.  524.  , 

6.  Croskery     v.      Busch,      116  7.     It   existed   in   laws   of   1869 
Mich.  288;  Stephensoh  v.  Martin,  and  1885,  1  H.  S..  §1167;  3  H.  S.,. 
84  Ind.  161 ;  Cogburn  v.  Hunt,  57  §1169w7. 


193    COLLECTION  ni-    I.IKN    I-OR  AM)  I.IABIUTY   FOR  TAX   £    144 

the  municipality,  the  lien  for  the  tax  is  merged  in  the  title 
acquired.  There  will  be  no  contingent  tax  lien  thereafter8. 
The  purchaser  of  state  homestead  lands,  where  the  title 
fails,  cannot  set  up  the  purchase  price  as  a  lien  against  the 
land9.  One  who  has  been  subrogated  to  a  mortgage  on 
land,  which  he  has  paid  and  who  is  in  possession  Claiming 
title,  will  have  no  lien  for  taxes  paid  on  the  failure  of  his 
title.  Such  taxes  so  paid  can,  however,  be  set  off,  in  an 
accounting,  against  the  use  of  the  place10. 

§144.     Lien  Upon  State  Swamp  Lands. 

These  lands,  when  partly  paid,  are  assessable  for  taxes 
though  the  title  is  still  in  the  state.  The  state,  in  respect 
to  these  lands,  has  been  acting  in  two  distinct  and  quite 
dissimilar  capacities;  as  a  proprietor  in  selling  them,  and 
as  a  sovereign  in  taxing  them.  In  the  first  capacity,  it 
treats  with  a  purchaser  precisely  as  any  other  proprietor 
might,  offering,  agreeing  upon,  and  accepting  terms,  and 
entering  into  stipulations  from  which  it  is  not  at  liberty 
to  depart,  and  to  which  it  cannot  add  in  the  smallest  par- 
ticular except  with  the  assent  of  the  person  with  whom  it 
is  dealing.  The  contract  it  makes  must  stand,  and  the 
other  contracting  party  is  entitled  to  all  suitable  remedies 
upon  it. 

The  state,  as  a  sovereign,  cannot  deal  with  it  otherwise 
than  as  it  might  with  a  contract  between  two  private  citi- 
zens. But  the  state,  as  a  sovereign,  may  subject  the  in- 
terest acquired  by  the  contract  to  the  taxing  power  and 
the  police  power,  precisely  as  it  might  the  interest  acquired 

8.  Schneider    v.     Detroit,     135      143  Mich.  810. 

Mich.  570;  Cass  Farm  Co.,  Lt.  10.  Taylor  v.  Roniger,  1 17 
v.  Detroit,  139  Mich.  318.  Mich.  100. 

9.  Morse   v.    Auditor   General. 

(13) 


§  145  THE  LAW  OF  TAXATION  194 

under  any  contract  between  two  individuals,  and  not  other- 
wise. Though  a  part  paid  interest  is  taxed  as  personal 
property,  yet,  if  that  tax  is  not  paid,  the  state  may  issue  a 
deed  on  payment  of  the  purchase  price  and  hold  a  lien  upon 
the  land  for  the  unpaid  taxes11.  The  taxation  of  the  in- 
terest in  a  certificate  of  part  paid  swamp  land  was  not 
authorized  until  1858 ;  and  a  purchaser  from  the  state  prior 
thereto  was  entitled  to  a  patent  on  payment  of  the  purchase 
price  without  paying  the  subsequent  taxes1  la'  Setting  aside 
the  tax  sale  does  not  necessarily  set  aside  the  lien  for  the 
tax12. 

§145.     Liens  for  Drain  Tax. 

A  drain  tax  becomes  a  lien  upon  the  land  when  the  roll 
is  delivered  to  the  treasurer13. 

Statutory  Provision. 

C.  L.  §4359  provides:  "*     *     *     All  taxes  levied 

under  the  provisions  of  this  Act  or  of  Act  number 

two  hundred  and  sixty-nine  of  the  Session  Laws  of 

1881,  with  all  lawful  costs,  interest  and  charges,  shall 

be  and  remain  a  perpetual  lien  upon  the  lands  upon 

which  they  are  assessed,  and  a  personal  claim  against 

the  owner  or  owners  of  such  lands  until  they  are  paid." 

The  holder  of  a  void  patent  has  a  lien  on  the  land  for 

taxes  paid.     In  the  case  of  a  drain  tax  paid,  the  lien  is  the 

value  of  the  improvement  and  the  tax  paid14. 

11.  Robertson   v.   Land    Com'r,          13.     Frost    v.     Leatherman,     55 
44  Mich.  274,  278.  Mich.    33;    Lindsay  v.    Eastwood, 

lla.    Attorney  General  v.  A.  P.  72  Mich.  336. 

Cook  Co.,  122  Mich.  453.  14.     Sherman    v.    A.    P.    Cooke 

12.  Walker      v      Detroit,      138  Co..   98  Mich.  61. 
Mich.  538;  see  §437. 


COI.I.KCTION   OK  I.IKN    FOR   AND  LIABILITY    FOB  TAX    J;   146 

§146.     Lien  for  Taxes  Upon  Personal  Property. 

It  is  competent  for  the  legislature  to  provide  a  lien  upon 
personal  property  to  secure  or  enforce  the  collection  of 
the  tax15. 

Statutory  Provision. 

C.  L.  §3863,  provides :  "*  *  *  And  all  personal 
ta^es  shall  also  be  a  lien  on  all  personal  property  of 
such  persons  so  assessed  from  and  after  the  first  day 
of  December  in  each  year,  and  shall  take  precedence 
of  any  sale,  assignment  or  chattel  mortgage,  levy  or 
other  lien,  on  such  personal  property  executed  or  made 
after  said  first  day  of  December,  except  where  such 
property  is  actually  sold  in  the  regular  course  of 
i  trade." 

These  liens  are  statutory,  and  the  means  provided  for 
their  enforcement  must  be  followed.  There  is  no  presump- 
tion as  to  enforcing  a  tax  lien  as  to  how  it  shall  be  done, 
except,  in  the  absence  of  other  provisions,  there  is  an  im- 
plied power  to  bring  an  action  at  law16.  Under  the  law 
of  1899,  a  stranger  to  the  tax  took  them  free  from  the  tax 
lien  if  he  purchased  prior  to  Dec.  1st17.  Under  the  charter 
of  Detroit,  the  lien  does  not  attach  to  a  chattel  mortgage 
which  was  transferred  before  the  assessment  was  made11. 

15     St.  Johns  National  Bank  v.  136;  Berrien  Cotinty  Treasurer  v. 

Bingham    Twp.,    113    Mich.    203,  Burberry,  45  Mich.  79,  34. 

holding    that    the    lien    did    not  17.    Tously   v.    Post.   91    Mich, 

attach    to   hank   stock   sold   prior  631. 

to  that   date,   and   that   the  bank  18.    Lucking  v.   Ballentyne.   132 

•was     not      liable     therefor.        In  Mich.  584.  construing  Act  472  of 

Auditor  General   v.   Lake   George  Local    Acts    of    1901.    which    pro- 

etc.,  Rv.,  82  Mich.  426,  it  is  held  vided  that  "all  city  taxes  shall  he 

that    the    state    may    foreclose    a  ard    remain    a   lien    thereon    until 

claim  for  specific  taxes  in  equity.  paid,     and     no     transfer     of    the 

rrd   follow  the  personal  property  personal    property   .•>>< <-«n-<]     -shall 

upon  which  it  was  a  lien.  onerate  to  divest  or  destroy  such 

1C..     F.ncke  v.  Lange.  104  Mich.  lien." 
2fi  ;  Srpcrvisor  v.  Stimson.  4  Hill, 


§    147  THE  LAW  OF  TAXATION  IDG 

§147.     Enforcement  of  Lien  on  Personal  Property. 

A  statute,  acting  retrospectively,  cannot  create  a  lien  for 
a  tax  that  shall  take  precedence  over  existing  liens19. 
Where  goods  of  an  insolvent  have  been  turned  over  to  an 
assignee  for  the  benefit  of  creditors,  the  state  stands  in  no 
better  position  than  any  other  creditdr  as  to  a  personal  tax 
owing  from  such  insolvent20.  A  purchaser  of  bank  stock, 
prior  to  Dec.  1st,  takes  it  free  from  the  lien  for  taxes;  and 
when  the  bank  is  the  purchaser  prior  to  such  date,  it  can- 
not be  made  to  pay  these  taxes  where  it  cannot  reimburse 
itself21.  Similarly,  a  bona  fide  purchaser  of  personal  prop- 
erty prior  to  Dec.  1st,  takes  it  free  from  a  tax  lien22;  but 
if  purchased  after  Dec.  1st  the  lien  attaches23. 

A  lien  once  attached  upon  personal  property  continues 
until  paid.  Purchasers  of  such  property  have  no  right  to 
act  upon  the  presumption  that  the  officers  charged  with 
the  duty  of  collection  have  exhausted  all  of  the  remedies 
provided  for  such  collection,  and  secured  payment.  There 
is  no  presumption  that  taxes  have  been  paid  any  more  than 
that  other  debts  have  been  paid.  The  statute  nowhere 
fixes  a  time  for  the  expiration  of  the  lien,  nor  within  which 
the  auditor  general  must  act.  The  state  cannot  be  deprived 
of  its  rights  by  the  neglect  of  its  officers  where  their  acts 
are  not  made  precedent  to  the  creation  or  continuance  of 

19.  Act  228  of  Public  Acts  of       New     Orleans    v.     Houston,     119 
1875,   imposing  a  lien   for  unpaid      U.  S.  265. 

liquor   tax.     Finn   v.   Haynes,   37  22.     C.  L.  §3840  provides:  "No 

Mich.  63.  change  of  location  or  sale  of  any 

20.  Lyon   v.    Harris,    52    Mich.  personal   property,  after  the   first 
272,   holding   that   the   charter  of  day  of  May  in  any  one  year  shall 
Detroit,    §22,    Ch.   5.   Sub.    64,    did  affect    the    assessment    made    in 
not  intend  to  impose  a  lien  upon  such    year.     *     *     *"    Chippewa 
personal  property.  Hardware    Co.    v.    Atwood,    127 

21.  St.  Johns  National  Bank  v.  Mich.  338. 

Bingham    Twp.,    113    Mich.    203;          23.     Northwestern    Lumber    Co. 
Boston  v.   Beal,  51   Fed.  R.  306;      v.  Scott,  123  Mich.  357,  359. 


1!'7    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §  148 

such  rights,  and  no  time  is  specified  within  which  they  must 
act.  It  would  be  a  violation  of  principle  to  hold  that  a 
public  right  shall  be  lost  by  mere  delay  or  neglect  of  the 
public  agents  to  enforce  it,  in  the  absence  of  any  law  ex- 
pressly limiting  the  time  in  which  it  may  be  done84.  A 
lien  does  not  attach  because  of  an  illegal  purchase  of  a 
state  tax  bid,  as  where  the  subsequent  taxes  are  not  paid, 
and  this  state  tax  bid  is  latter  regularly  purchased  by  the 
owner25. 

§148.     Chancery  Sale. 

It  has  frequently  been  held  that  without  a  good  and  valid 
warrant,  the  treasurer  has  no  authority  to  collect  a  tax, 
and  that  he  is  a  trespasser  if  he  seizes  property  for  the 
purpose  of  making  his  tax.  Under  the  laws  directing  the 
sale  of  property  by  advertisement  merely,  for  the  collection 
of  taxes,  an  invalid  warrant  would  defeat  the  tax  title. 

Since  the  radical  change  in  the  laws  by  which  the  en- 
forcement of  delinquent  taxes  is  sought  through  the  judi- 
cial branch  of  the  government,  the  proceedings  and  prin- 
ciples involved  are  quite  different  from  the  old  methods. 
The  law  proceeds  upon  the  theory  of  the  existence  of  a 
claim  upon  behalf  of  the  state  against  the  property  owner 
for  taxes  which  have  not  been  paid,  and  cites  him  into 
court  to  answer  a  bill  to  enforce  this  claim  against  the 
property  taxed.  It  is  not  a  sufficient  answer  to  show  that 
the  treasurer  would  have  been  a  trespasser  had  he  collected 
this  tax,  or  that  he  had  not  demanded  payment:  the  fact 

24.    Auditor    General    v.    Lake  on  such  personal  property  as  had 

George,    etc.,    Ry.,    82    Mich.   426,  been     destroyed      or     converted, 

holding  that  a  tax  Hen  over  nine  United  States  v.  Railway  Co.,  118 

years  old  could  be  foreclosed,  and  U.  S.  125. 

that  the  purchasers  of  the  personal  25.     Miller    v.     Meilstrup,     144 

property  were  liable  for  the  lien  Mich.  643. 


£  1411  THE  LAW  OF  TAXATION  198 

would  remain  that  the  tax  was  still  due  and  unpaid.  Hence, 
the  tax  payer  must  show  some  defect  wherein  he  is  in- 
jured, and  not  a  mere  irregularity  which  does  not  prejudice 
property  rights.  A  lack  of  a  warrant  on  the  roll  does  not 
prejudice  the  tax  payer  in  a  court  of  equity*6. 

§149.     Warrant. 

A  warrant  properly  signed  may  be  identified  from  the 
fact  of  its  being  annexed  to  the  proper  tax  roll,  where  it 
is  not  addressed  to  any  particular  person27. 

Statutory  Provision. 

C.  L.  §3865,  provides :  "The  supervisor  shall  there- 
upon prepare  a  copy  of  the  said  assessment  roll,  with 
the  taxes  assessed  as  hereinbefore  provided,  and  annex 
thereto  a  warrant  signed  by  him,  commanding  the 
township  or  city  treasurer  to  collect  the  several  sums 
mentioned  in  the  last  column  of  such  roll  and  to  re- 
tain in  his  hands  the  amounts  receivable  by  law  into 
the  township  treasury  for  the  purposes  therein  speci- 
fied, and  to  pay  over  to  the  county  treasurer  the 
amounts  which  shall  have  been  collected  for  state  and 
county  purposes  up  to  and  including  the  tenth  day  of 
January  next  following,  within  three  days  thereafter, 
and  the  remainder  of  the  amounts  therein  specified  for 
said  purposes,  and  account  in  full  for  all  moneys  re- 
ceived on  or  before  the  first  day  of  March  next  follow- 
ing; and  the  said  warrant  shall  authorize  and  com- 

26.  Auditor    General   v.    Spar-  Lumber  Co.  v.  Hagar,  118  Mich, 
row,  116  Mich.  574.  452,  and  Auditor  General  v.  Stiles, 

27.  St.     Joseph     Bank     v.     St.  83    Mich.   460.     In   Westbrook  v. 
Joseph   Twp.,   46   Mich.   526;   the  Miller,  64  Mich.  129,  an  unsigned 
warrant     need     not     contain     the  and    undated    warrant   is   held    to 
treasurer's    name,    Loud    &    Sons  vitiate  the  tax  deed. 


199    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §  150 

mand  the  treasurer  in  case  any  person  named  in  the 
assessment  roll  shall  neglect  or  refuse  to  pay  his  tax, 
to  levy  the  same  by  distress  and  sale  of  goods  and 
chattels  of  such  person.  The  supervisor  may  make  a 
new  roll  and  warrant  in  case  of  the  loss  of  the  one 
originally  given  to  the  township  treasurer;  the  copy 
of  the  roll  with  the  warrant  annexed,  shall  be  known 
as  "The  tax  roll." 

The  warrant  may  be  signed  and  placed  upon  the  roll 
after  the  time  fixed  therefor  by  statute28,  or  it  may  be 
placed  thereon  before  the  meeting  of  the  board  of  review-"1. 
The  warrant  need  not  run  in  the  name  of  the  People 
of  the  State  of  Michigan,  as  the  provision  of  the  Constitu- 
tion in  respect  to  process  applies  only  to  processes  issued 
by  courts  of  record ;  but  the  warrant  must  be  signed30.  It 
may  direct  the  collection  of  one  per  cent  more  than  speci- 
fied in  the  roll,  being  the  amount  authorized  to  avoid  frac- 
tions31. 

§150.     Warrant.     Extension  of, 

The  warrant,  or  proper  authority,  may  be  renewed  with- 
in the  limits  provided  by  statute;  and  such  renewal  will  be 
valid  though  not  made  until  after  a  former  renewal  has 
expired.  Unless  the  action  is  against  the  collecting  officer, 
a  clerical  mistake  in  dating  the  warrant  may  be  shown**. 

28.  Hubbard  v.  Winsor,  15  4%  extra  is  held  void  under  87 

Mich.  146.  of  Act  96  of  Laws  of  1844. 

20.  Dickison  v.  Reynolds,  48  32.  Gratwick,  etc.,  Lumber  Co. 

Mich.  159.  v.  Oscoda.  97,  Mich.  221 :  Minoi 

30.  Tweed  v.  Metcalf,  4  Mich.  Lumber  Co.  v.  Alpena,  07  Mich. 
579,  593;  Wisner  v.  Davenport,  5  499.     In   Philips   v.    New    Buffalo 
Mich.  501.  Twp..    68    Mich.    217,    a    renewal 

31.  Grand  Rapids  v.  Wellman,  under  Act  No.  8  of  Public  Acts 
85  Mich.  234.     In  Buell  v.  Irwin,  of    1885,    was   held    void   because 
24  Mich.  145,  a  direction  to  collect  made  before  the  act  took  effect. 


§  150  THE  LAW  OF  TAXATION  200 

The  renewal  may  also  be  made  before  the  old  warrant  ex- 
pires33. When  the  renewal  is  authorized  by  a  city  council, 
such  authorization  need  not  be  endorsed  upon  the  old  war- 
rant, nor  is  any  formal  notification  to  the  collector  neces- 
sary34. The  extension  will  not  be  vitiated  because  the 
records  do  not  show  that  a  temporary  secretary  qualified, 
the  presumption  being  that  he  did35.  The  collector  may 
make  his  return  before  the  extension  expires,  since  the  ex- 
tension is  for  his  benefit  rather  than  the  tac  payers,  who 
may  thereafter  pay  their  taxes  at  any  time  to  the  county 
treasurer36. 

Statutory  Provisions. 

C.  L.  §3879,  provides:  "*  *  *  The  county 
treasurer  shall  give  the  township  or  city  treasurer  a 
statement  of  all  the  personal  taxes  which  remain  un- 
collected,  taken  from  the  returns  of  the  latter,  with  a 
warrant  authorizing  him  or  his  successor  to  collect 
them  according  to  law,  and  thereafter  such  treasurer 
or  his  successor  shall  have  the  same  power  to  collect 
such  taxes  as  under  the  original  warrant." 

C.  L.  §2847,  with  respect  to  special  assessment  rolls 
in  villages,  provides :  "Said  warrant  may  be  renewed 
from  time  to  time  by  the  clerk,  if  the  council  shall  so 
direct,  and  for  such  time  as  they  shall  determine,  and 
during  the  time  of  such  renewal  the  warrant  shall  have 
the  same  force,  and  the  treasurer  shall  perform  the 
same  duties  and  make  the  like  returns  as  above  pro- 
vided." 

33.  Bird   v.   Perkins,   33  Mich.          35.     St.    Joseph   National    Bank 
28.  v.  St.  Joseph  Twp..  46  Mich.  526. 

34.  Griswold    v.    School  Dist.,          36.     Drennan    v.    Beierlein,     49 
24  Mich.  262.  Mich.  272. 


201    COLLECTION  OF  LIEN    Ink  AND  UA1UI.ITY    HW  TAX   £    1  .",  1 

With  respect  to  general  taxes,  C.  L.  §2866,  provides : 
«*  *  *  Tne  president  may  renew  said  warrant 
from  time  to  time,  by  order  of  the  council,  and  for 
such  time  as  the  council  shall  direct :  Provided,  That 
the  time  shall  not  be  extended  later  than  the  third 
Monday  of  October  in  any  year." 

C.  L.  §3329  provides  that  the  city  supervisor  shall 
deliver  the  roll  with  his  warrant  attached,  to  the  city 
treasurer. 

C.  L.  §3219,  provides  a  lien  for  special  assessments 
in  cities. 

C.  L.  §3384  provides  that  the  county  treasurer  may 
issue  new  warrants  to  the  city  treasurer  for  the  col- 
lection of  taxes  in  the  same  manner,  and  in  the  same 
cases,  and  with  Rke  effect  as  when  new  warrants  are 
issued  to  township  treasurers. 

C.  L.  §3216  provides  that  the  city  clerk  shall  issue 
his  warrant  to  the  city  treasurer  to  collect  special 
assessment. 

C  L.  §3219  provides  that  the  city  clerk,  on  the 
direction  of  the  city  council,  renew  the  warrant  upon 
a  special  assessment  roll,  from  time  to  time. 

§151.     Collector. 

The  legality  of  the  election  or  appointment  of  a  collect- 
ing officer  cannot  be  inquired  into  by  a  third  person  as  a 
defense  for  not  paying  a  tax.  It  is  sufficient  for  the  col- 
lector to  show  that  he  is  performing  the  functions  of  his 
office37.  A  township  treasurer,  when  authorized  by  the 

37.     See    "De     facto    Officers."      28;   Stockle   v.   Silsbce.   41    Mirh. 
1284.    Bird   v.    Perkins,   33   Mich.       «15. 


§  152  THE  LAW  OF  TAXATION  202 

supervisor,    may   bring  suit   to  collect   a   tax   on   personal 
property38. 

§152.     Bond  of  Collector. 

The  collector  is  required  to  give  a  bond  to  account  for 
the  monies  collected  by  him;  but  this  is  for  the  protection 
of  the  public.  Therefore,  the  time  within  which  a  bond 
may  be  given  is  directory39.  The  township  board  cannoi 
release  the  bond  or  sureties40.  This  bond  covers  all  tax 
monies  coming  into  the  collectors  hands  whether  or  not 
the  tax  be  legal.  He  receives  such  money  in  payment  of 
taxes  as  money  belonging  to  the  public41.  The  county  has 
a  right  of  action  against  the  bond  of  a  defaulting  township 
treasurer,  for  state  and  county  monies  lost;  or  it  may  pro- 
ceed by  mandamus  to  compel  the  township  to  make  the 
loss  good42.  Where  a  sheriff  acts  as  a  collector  of  taxes, 
his  bondsmen  for  him  as  sheriff  will  not  be  liable  for  tax 
money  collected  by  him.  When  the  obligation  on  the  bond 
is  created,  the  parties,  unless  they  express  themselves  very 
clearly  to  the  contrary,  must  be  understood  as  referring 
to  the  kind  of  duties  which  are  fairly  appropriate  to  the 
office  as  it  then  exists,  distinct  from  others.  In  case  some- 

38.  Ovid    Twp.    v.    Haire,    133  Finn  572;  Mason  v.  School  Dist.. 
Mich.  353  ;  Bangor  Twp.  v.  Trans-  34    Mich.   228 ;    Clark   v.    Freder- 
portation  Co.,  112  Mich.  601.  burg.  43  Mich.  263;  Marquette  Co. 

39.  See     "De     facto     officers."  v.  Ward,  50  Mich.  174,  involving 
§2S4.      Hubbard     v.     Winsor,     15  a  liquor  tax ;   Cheyboygan  Co.  v. 
Mich.^146,  154;  Stockle  v.  Silsbee,  Erratt.  110  Mich.  156;  Boehmer  v. 
41    Mich.    615;    Attorney    General  Schuylkill  Co.  46  Pa.  St.  452.    In 
v.  St.  Clair  Supervisors,  30  Mich.  Rice  v.  Sidney  Twp.,  44  Mich.  37, 
388.  it  is  held  that  the  sareties  are  not 

40.  Otsego      Lake      Twp.      v.  bound    by    a    false    statement    of 
Keisten,  72  Mich.  1.  account ;  same  in  Boardman  Twp. 

41.  Berrien    Co.    Treasurer    v.  v.  Flagg,  70  Mich.  372. 
Bunbury,  45   Mich.   79,   85;    King  42.     Hart    v.    Osceana    Co.,    44 
v.   United   States,   99   U.    S.   229;  Mich.  417. 

Gwynne    v.    Burrell,    7    Clark    & 


203    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §  152 

thing  beyond  is  meant  to  be  provided  for,  the  provision 
should  be  made  so  plain  as  to  leave  no  reasonable  grounds 
for  the  sureties  to  allege  failure  to  understand  it.  The  law 
will  not  intend  that  duties  not  yet  existing  and  not  germane 
to  the  office,  were  within  the  contemplation  of  the  sureties 
or  within  the  proper  scope  of  their  undertaking43.  Where  a 
bond  recites  that  a  collector  is  to  hold  office  until  his  suc- 
cessor is  elected  and  qualified,  the  sureties  thereon  are  hold- 
ing for  an  incumbency  during  a  second  term  where  there 
was  no  reappointment44.  The  sureties  will  not  be  held 
upon  a  bond  not  signed  by  the  principal.  The  contract  is 
incomplete  until  all  the  parties  contemplated  to  join  in  its 
execution  affix  their  names  to  it.  The  law  presumes  tint 
the  party  signing  did  so  upon  the  condition  that  the  other 
obligors  named  in  the  instrument  should  also  sign  it;  and 
their  failure  to  comply  with  their  agreement  gives  him  a 
right  to  retract46.  A  surety,  however,  who  signs  a  bond 
in  blank,  on  a  promise  that  other  parties  will  sign  as  co- 
sureties, will  be  estopped,  after  the  delivery  of  the  bond, 
from  objecting  because  such  other  parties  did  not  sign4*. 

Failure  of  a  municipal  body  to  periodically  examine  the 
accounts  of  the  treasurer,  as  may  be  required  by  statute, 
will  not  exonerate  or  release  the  sureties47.  Neither  will 


43.  White  v.  East  Saginaw,  43  39  Mich.  187.  189;  Wells  v.  Dill. 
Mich.  567,  569;  Gaussen  v.  United  1  Mart,  (La.)  592. 

States,  98  U.  S.  584;  Converse  v.  46.     McCormick  v.  Bay  City,  23 

United  States,  21  How.  403 ;  Com-  Mirh.  457 ;  Crystal  Lake  Twp.  v. 

monwealth   v.   Holmes,   25   Gratt.  Hill.  109  Mich.  246. 

771;  St.  Louis  v.  Sickles,  51  Mo.  47.     Detroit      v.      Webber,     26 

122.  Mich.  284 ;  United  States  v.  Kirk- 

44.  Laurium    Village    v.    Mills,  patrick,    9    Wheat.    720;    Dox    v. 
129   Mich.   536;   Grand   Haven   v.  Postmaster     General.     1     Peters. 
Guaranty     Co.,     128     Mich.     108;  317;    State    v.    Atherton.    40    Mo. 
Paw   Paw  Twp.  v.  Eggleston,  25  2«9 ;   F.x  parte  Christian,  23  Ark. 
Mich.   36;    Porter   v.    Stanley,   47  641;   Detroit  v.  Weber,  29  Mich. 
Me.  515.  24. 

45.  Johnson    v.    Kimhall    Twp., 


§  153  THE  LAW  OF  TAXATION  204 

the  sureties  be  released  because  a  council  neglcts  to  formally 
approve  a  bond.  To  permit  such  a  defense  is  against  pub- 
lic policy.  Moreover,  a  bond  not  required  by  the  statute 
to  be  given,  if  given  voluntarily,  is  valid48. 

§153.     Liability  of  Collectors. 

Where  the  collector  fails  to  collect  the  tax  from  a  per- 
son having  known  property  subject  to  levy,  but  makes  a 
return  of  nulla  bow,  he  will  become  liable  to  a  person  in- 
jured thereby,  as  a  lien  holder  upon  real  estate,  who  is 
obliged  to  pay  such  tax  to  protect  his  lien.  The  principle 
involved  is,  that  a  public  office  having  ministerial  duties 
to  perform,  in  which  a  private  individual  has  a  special  and 
direct  interest,  is  liable  to  such  individual  for  any  injury 
sustained  by  him  in  consequence  of  the  failure  to  perform 
such  duties.  It  is  immaterial  that  the  duty  is  one  pri- 
marily imposed  on  public  grounds  and  therefore  a  duty 
primarily  owing  to  the  public;  the  right  of  action  springs 
from  the  fact  that  the  private  individual  receives  a  special 
and  peculiar  injury  from  the  neglect  in  performance,  which 
it  is  the  purpose  of  the  law  to  protect  him  against.  It  is 
immaterial  that  a  failure  to  comply  with  the  law  is  made 
a  penal  offense49.  When  lands  are  assessed  as  non-resident, 
and  the  tax  is  not  paid,  it  is  the  collector's  duty  to  return 
such  lands,  as  he  has  no  jurisdiction  to  levy50.  The  col- 
lector is  liable  for  the  monies  he  collects,  but  is  not  guilty 

48.  Evart   v.    Postal,   S6   Mich.  21  Mass.  392;  Bolton  v.  William- 
325.    In  O'Marrow  v.  Port  Huron,  son,  1  Brev.  181.     In  Raynesford 
47  Mich.  535,  a  virtual  refusal  to  v.  Phelps,  49  Mich.  315,  it  is  held 
accept  a  bond  is  held   to   release  that    the    collector    can    show    in 
the  sureties.  defense    that    the    tax    was    void 

49.  Raynesford    v.    Phelps,    43  and  the  resulting  tax  title  of  no 
Mich.   342 ;    Amy   v.    Supervisors,  effect. 

11  Wall.  136;  Tracy  v.  Swarthout,  50.  Tweed  v.  Metcalf,  4  Mich. 
10  Peters.  80;  Brown  v.  Lester,  579. 


205    COLLECTION  <>!•    I.IKN  FOR  AND  l.IAIUUTY   FOR  TAX  §    1  .M 

of  embezzlement  because  the  bank  fails  in  which  he  had 
deposited  the  money01.  The  loss  of  public  money  by  theft, 
robbery  or  otherwise,  is  the  loss  of  the  treasurer;  and  it 
is  beyond  the  power  of  the  legislature  to  provide  for  his 
reimbursement52.  Upon  the  default  of  the  township  treas- 
urer, a  statute  providing  that  the  county  treasurer  should 
issue  his  warrant  against  such  delinquent  collector,  and 
deliver  the  same  to  the  sheriff  for  collection,  is  held  not  to 
apply  to  a  defaulting  ward  collector88. 

The  warrant  upon  the  tax  roll,  if  fair  upon  its  face,  pro- 
tects the  collector  against  any  personal  liability  because  of 
its  enforcement54,  unless  he  levies  for  a  tax  upon  property 
not  subject  to  general  taxation  and  improperly  upon  the 
roll55 ;  as  a  tax  levied  under  a  void  law,  since  the  collector 
is  bound  to  know  the  law58.  The  tax  roll  is  itself  as  com- 
plete and  adequate  as  an  execution  on  a  judgment  would 
be,  if  there  are  goods  and  chattels  within  the  collector's 
jurisdiction57.  The  collecting  officer  will  be  held  liable  for 
defects  appearing  upon  the  face  of  the  warrant58. 

§154.     Liability  for  Tax. 
It  is  the  duty  of  the  tenant  for  life  to  pay  the  taxes5*. 

51.  People    v.    Wadsworth,    63  57     Staley    v.    Columbus    Twp.. 
Mich.  500.  36  Mich.  38. 

52.  Bristol      v.     Johnson,      34  58.    Atwell   v.   Zeliff,   26   Mich. 
Mich.  123.  118. 

53.  James  v.  Howard,  4  Mich.  59.     Smith     v.     Blindbury,     65 
446.  construing  §62,  p.  148  of  laws  Mich.  319,  323;  Jones  v.  Wright, 
of  1853.  34    Mich.    371;    Rea    v.    Rea.    6H 

54.  See   Replevin   and   Trover.  Mich.  257,  268;  Jenks  v.  Horton, 
Bird    v.    Perkins,    33    Mich.    28;  96   Mich.    13;   jeffcrs  v.   Sydham, 
Moses    v.     Cummings,    44    Mich.  129  Mich.  440;  Defreese  v.  Lake, 
359;    Byles  v.   Genung,   52   Mich.  109   Mich.   415;    Patrick   v.   Sher- 
504;    Curtiss   v.   Witt,   110   Mich.  wood.    4    Blatchf.    112;    Fleet    v. 
131;  Wood  v.  Thomas,  38  Mich.  Dorlard.      11      How.      Pr.     480; 
686.  Kearney  v.  Kearney.  17  \.  T.  Kn. 

55.  Leroy  v.  East  Saginaw,  18  504;   Wilson   v.   Edmunds.   :.'»    N* 
Mich.  233.  H.  517.    See  "Lew"  §163.  post. 

56.  Mogg  v.  Hall,  83  Mich.  576. 


§  154  THE  LAW  OF  TAXATION  206 

Statutory  Provisions. 

C.  L.  §2841  provides  that  special  assessments  in 
villages  shall,  from  the  date  of  their  confirmation,  con- 
stitute a  lien  upon  the  respective  lots  or  parcels  of  land 
assessed,  and  shall  be  a  charge  against  the  persons 
assessed  until  paid. 

C.  L.  §2859  provides  that  the  village  assessor  shall 
make  his  roll,  except  as  otherwise  directed,  in  the 
same  manner  as  directed  by  the  general  laws  of  the 
state. 

C  L.  §3207  provides  for  a  lien  for  special  taxes  in 
cities,  and  the  person  assessed  liable  until  the  tax  is 
paid. 

C.  L.  §3318  makes  the  assessment  and  liability  for 
general  taxes  in  cities  the  same  as  in  townships. 

C.  L.  §3863  provides  that  taxes  shall  at  once  become 
a  debt  to  the  township,  ward  or  city  from  all  persons 
to  whom  they  are  assessed,  and  shall  become  a  lien  on 
the  property  on  the  first  day  of  December. 

C.  L.  §3867  provides  that  a  tenant  of  lands  shall 
be  liable  for  the  tax,  after  the  delivery  of  the  roll  to 
the  collector,  but  not  for  more  of  the  tax  than  the 
rental  would  amount  to  after  the  roll  is  in  the  col- 
lector's hands. 

C.  L.  §4359  provides  that  drain  taxes,  with  all  law- 
ful costs,   interest  and  charges,   shall   remain  a  per- 
petual lien  upon  the  lands  upon  which  they  are  as- 
sessed,  and   a  personal   claim   against  the  owner  or 
owners  of  such  lands  until  they  are  paid. 
A  purchaser  of  a  half  interest  in  timber  lands  is  liable 
for  half  of  the  tax  thereafter  assessed60.     One  who  sells 

60.     Thompson    v.    Ward,    108      Mich.  26. 


207    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §  154 

timber,  to  be  delivered  after  it  is  sawed  and  paid  for,  is 
liable  for  the  tax  thereon61.  Where  a  vendee  was  to  pay 
all  taxes  "assessed"  on  certain  timber  lands,  except  such 
as  had  been  assessed  after  the  timber  had  been  removed 
or  released,  the  term  "assessed"  is  held  to  include  all  of 
the  steps  necessary  to  be  taken,  including  the  action  of  the 
board  of  supervisors.  The  mere  listing  of  the  land  by 
the  supervisor  is  not  a  completed  assessment82.  An 
executor  is  personally  liable  for  a  tax  on  property  in  his 
hands,  and  suit  may  be  brought  against  him  though  he  has 
distributed  the  estate'3.  A  receiver  cannot  give  unpaid 
taxes  a  preference  over  creditors;  and  an  agreement  with 
a  municipality  to  forbear  collection  of  taxes  is  a  considera- 
tion to  support  a  promise  of  their  full  payment  later,  and 
enforceable84.  A  conveyance  of  land  to  a  non-resident  for 
the  sole  purpose  of  assessment,  is  a  fraud;  and  the  col- 
lector can  levy  on  the  goods  of  the  real  owner85.  An  as- 
sessment of  personal  property  to  the  agent  having  the  con- 
trol thereof,  makes  such  agent  personally  liable  for  the 
tax;  and  property  of  the  principal  cannot  be  seized  to  pay 
it66.  An  agreement  prior  to  1891  that  a  mortgagor 
should  pay  all  taxes  assessed  on  the  land  mortgaged,  does 
not  bind  him,  as  between  himself  and  the  mortgagee,  to 
pay  the  taxes  assessed  upon  the  mortgage  under  the  law 
of  189187.  But  where  the  mortgage  contains  a  covenant 
to  pay  all  taxes  assessed  upon  the  mortgage  or  the  debt 
secured  thereby,  the  mortgagor  is  liable  for  the  personal 

61.  Grand  Rapids   Bark,  etc,       113  Mich.  478. 

Co.  v.  Inland  Twp.  136  Mich.  Ml.          fi.v     Loud  &  Sons  Lumber  Co. 

62.  Rothschild    v.    Begole,    105      v.   Fltner  Twp..  123  Mich.  61. 
Mich  388.  r,fi.     Pioneer  Fuel  Co.  v.  M alloy. 

63     Orion  Twp.  v.  Ax  ford,  112       KM   Mich.  466. 

Mich.  179.  •-.:.     Fuller  v.   Kane.   110   Mich. 

64.    Union  Trust  Co.  v.  Mahly,      540. 


£  155  THE  LAW  OF  TAXATION  208 

tax  assessed  upon  the  mortgage  debt.  Such  a  contract  is 
not  usurious  unless  the  parties  knew  that  the  interest  pro- 
vided in  the  mortgage,  with  the  tax,  would  exceed  the 
maximum  legal  rate.  In  any  event,  the  mortgagor  will  not 
be  obliged  to  pay  more  than  the  maximum  rate  provided 
by  statute68.  Land  contracts  and  mortgages,  i.eing  an  in- 
terest in  real  estate,  though  owned  by  non-residents  of  the 
state,  are  subject  to  the  inheritance  tax69.  Under  the 
charter  of  the  City  of  Detroit,  the  tax  becomes  a  personal 
charge  on  April  2nd  of  each  year70.  But  when  a  tax  h  not 
a.  personal  charge  when  assessed,  it  cannot  thereafter  be 
so  made  by  the  legislature71. 

§155.     Payment. 

Payment  of  a  tax  can  only  be  made  in  legal  tender. 
Taxes  are  due  to  the  public  and  not  to  the  tax  collector 
individually,  and  claims  against  him  are  not  a  legal  tender 
for,  or  an  off-set  against  such  taxes72.  A  note  taken  for  a 
tax  is  void  as  against  public  policy73.  Therefore,  the  giv- 
ing of  a  note  for  a  tax  will  not  support  a  statutory  protest 
made  at  the  time  though  the  note  be  afterwards  paid.  The 
money  must  be  actually  paid  at  the  time  the  protest  is  made. 
If  any  other  rule  should  be  adopted,  then  the  treasurer 
might  take  the  note  of  each  person  appearing  upon  his  tax 

68.  Green  v.  Grant,  134  Mich.  71.     Detroit      v.      Patten,      143 
462.  Mich.  243. 

69.  Gd.  Rapids  v.  L.  S.  &  M.  S.  72.    Elliott   v.    Miller,    8    Mich. 
R.,  130  Mich.  238.   In  Union  Trust  132 ;   People  v.   Seeley,  117  Mich. 
Co.  v.  Grant,  148  Mich.  501,  it  is  263. 

held    that   the   time    specified  for  73.     Doran  v.  Phillips,  47  Mich, 

declaring    a    mortgage     due  for  228.     In  Hatch  v.  Ried,  112  Mich, 

default  in  paying  taxes  does  not  430,  it  is  held  that  the  note  in  the 

begin  to  run  until  the  mortgagee  hands    of    the    treasurer   is    good 

has  paid  the  tax.  when       the       treasurer       actually 

70.  In    re    Stanton    Est.,  142  advanced   the   money   to   pay   the 
Mich.  491.  liquor  tax. 


209    COLLECTION  OF  LIEN   FOR  AND  LIABILITY   HiR  TAX    ji    1  .'..*, 


roll,  payable  at  a  time  beyond  the  life  of  the  roll,  and  the 
only  remedy  the  township  would  have  would  l>e  an  action 
upon  these  notes,  or  look  to  the  bond  of  the  township 
treasurer.  The  giving  of  a  note  cannot  release  the  party 
from  his  tax,  and,  although  a  note  is  given,  the  public- 
would  have  the  right  to  the  enforcement  of  the  collection 
of  the  tax,  by  a  levy  and  sale  under  the  terms  of  the  war- 
rant attached  to  the  roll,  at  any  time  within  the  life  of  the 
warrant.  The  collector  has  no  power  to  exempt  the  party 
from  its  payment,  and  all  persons  are  bound  at  their  peril 
to  know  the  power  and  authority  of  such  a  public  officer74. 
If  a  land  owner,  in  good  faith,  applies  to  the  proper  officer 
for  the  purpose  of  paying  his  taxes,  and  is  prevented  by 
the  mistake,  wrong  or  fault  of  the  officer,  such  attempt  to 
pay  is  equivalent  to  payment75.  While  a  collecting  officer 
is  not  bound  to  accept  anything  but  the  money,  yet,  if  he 
should  accept  a  draft  or  check,  the  land  owner  cannot  com- 
plain. The  cashing  of  the  paper  will  make  the  payment 
relate  back  to  the  time  the  draft  or  check  was  delivered76. 
As  between  the  party  paying  and  the  collecting  officer,  a 

74.  Turnbull   v.   Alpena   Twp.,  Maneka,  126  Mich.  550.    In  Gray 
74     Mich.     621,     626;     sec.     §158,  v.    Detroit,    113    Mich.    657,    it    is 
Chapman  v.  Remington,  80  Mich.  held  not  to  be  within  the  scope  of 
552  ;   such  a  note  is  good  in  the  power  of  the  Detroit  City  treas- 
hands  of  an   innocent  purchaser.  urer  to  issue  tax  statements,  and 

75.  Kneeland     v.     Wood,     117  that    an    erroneous    statement    by 
Mich.   174  ;    Kneeland   v.   Auditor  him     does    not    relieve    the    tax 
General,    113    Mich.    63;    Breisch  payer,  or  avoid  a  sale  for  taxes. 
v.  Coxe,  81  Pa.  St.  336;  Gould  v.  In   Kent   v.   Auditor  General.   138 
Sullivan,  84  Wis.  659  ;  Edwards  v.  Mich.     605,    the    local     treasurer 
Upham,  93   Wis.  455  ;   Loomis  v.  applied  the  money  sent  him  on  the 
Pingree.    43    Me.    299  ;    Forest    v.  wrong  description  of  land. 
Henry,  33  Minn.  434  ;   Kinsworth  76.    Act  No.  228,  Laws  of  1899  : 
v.   Austin,   23    Ark.    375;     Hand  Hubbard  v.  Auditor  General.  120 
v.     Auditor    General,    112    Mich.  Mich.    505  ;    Estabrook    v.    Prit- 
597;    Houghton    v.    Auditor   Gen-  chard,      19      Mich.      470;      Mich. 
eral.  116  Mich.  663;  Mann  v.  Car-  Sanitarium,   etc.   v.   Battle   Creek. 
son,  120  Mich.  631  ;  Carpenter  v.  138  Mich.  676. 

Jones,  117  Mich.  91  ;   Northup  v. 
(H) 


S  155  THE  LAW  OF  TAXATION  210 

check  or  draft  or  note  is  not  a  payment  until  the  money 
i:-  realized.  A  tax  collector  has  no  authority  to  receive  any- 
thing in  payment  of  taxes  but  such  money  as  at  the  time 
is  legal  tender,  or  at  least  passes  current.  A  bank  check 
i«  only  a  conditional  payment,  and  the  tax  will  remain  in 
force  if  the  check  is  dishonored77.  A  deposit,  or  draft,  not 
specifying  the  lands  to  be  redeemed  or  bid  in,  is  not  a  pay- 
ment78. A  payment  of  a  tax  in  void  township  orders, 
which  the  collector  accepts  and  which  are  allowed  as  cash 
by  the  township  board  on  a  settlement  with  the  collector, 
discharges  the  tax;  and  the  township  cannot  thereafter 
maintain  a  suit  against  the  tax  payer79.  A  payment  takes 
effect  from  the  time  it  is  received  by  the  collecting  officer, 
and  not  from  the  time  it  may  have  been  mailed  at  a  post 
office80.  One  whose  duty  it  is  to  pay  taxes  cannot  obtain 
a  tax  title  separate  and  distinct  from  the  original  title. 
Such  a  purchase  is  only  one  method  of  paying  taxes  and 
performing  the  duty  owed  to  the  state81.  Where  the  owner 
of  lands  sends  the  amount  of  taxes  due  to  the  township 
treasurer,  who  by  mistake  applies  the  money  to  the  pay- 
ment of  taxes  in  which  the  owner  has  no  interest,  the  sale 
of  the  owners  land  will  be  cancelled  and  the  tax  dis- 
charged82. A  tax  payer  has  no  right  to  pay  his  tax  in 


77.    Moore  v.  Auditor  General,  a    contractor    interested    in    that 

122  Mich.  509,  603,  quoting  from  fund  to  which  the  payment  would 

Judge   Cooley;   Kahl  v.  Love,   37  go  if  the  tax  was  legal. 

N.  J.  Law  5;   Alkan  v.   Bean,   8  78.     Paine      v.      Boynton,      124 

Biss.     83;     Koones     v.     Dist.     of  Mich.  194. 

Columbia,  4  Mackey,  339.   In  Geb-  79.     Staley   v.    Columbus   Twp., 

hardt  v.  East  Saginaw,  40  Mich.  36  Mich.  88. 

336,    a   check   deposited   with   the  80.     Paine      v.      Bpynton,      124 

treasurer  to  abide  the  event  of  a  Mich.  194. 

suit  to  test  the  legality  of  taxes,  •  81.     Clippinger  v.  Auditor  Gen- 
is  held  only  a  conditional  payment  eral,  135  .Mich.  1. 
at    the    most,    and    on    the    taxes .  82.     Kent    v.    Auditor    General, 
being  set  aside  the  treasurer  has  138  Mich.  605,  holding  that  C.  L. 
no  right  to  cash  the  same  to  pay  §3921,  does  not  apply. 


211    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §  155 

installments,  but  he  may  pay  the  portion  which  he  deems 
valid,  receiving  a  receipt  therefor,  and  contest  the  remain- 
der. The  same  steps  would  be  taken  to  collect  the  remain- 
der as  though  more  had  been  paid83.  A  purchase  of  state 
tax  land  by  the  owner  of  the  original  title  is  in  effect  *a 
payment  and  redemption  of  the  tax.  The  original  owner 
has  the  right  to  become  a  purchaser,  and  therefore,  in  effect, 
the  right  to  redeem  under  these  circumstances,  though  this 
right  to  redeem  from  the  original  sale  to  the  state  had 
expired  and  only,  by  this  re-offering  for  sale,  again  comes 
into  existence.  Where,  in  such  a  case,  the  selling  officer 
does  not  inform  such  owner  and  purchaser  of  the  existence 
of  prior  unpaid  taxes,  which  it  is  his  duty  to  do,  and  the 
deed  issued  is  void  because  of  the  non-payment  of  such 
prior  taxes,  the  purchase  by  such  owner  will  not  be  with- 
out effect,  but  will  be  deemed  a  payment  and  redemption 
of  the  tax  on  his  land  for  which  the  land  was  offered  for 
sale;  and  the  failure  of  such  selling  officer  to  inform  him 
of  such  prior  taxes  will  have  the  effect  of  a  payment  so  far 
as  cancelling  a  sale  for  such  prior  taxes  made  subsequently 
to  such  owner's  purchase  or  payment84.  Where  the  local 
treasurer  applies  money  sent  to  pay  a  particular  tax  to  a 
different  tax,  and  the  land  such  money  was  sent  to  pay  the 
taxes  on  is  returned  and  sold,  the  court  will  order  a  can- 
cellation of  the  deed  without  requiring  the  owner  to  again 
pay  the  tax86.  When,  however,  an  owner  pays  upon  a 
wrong  description  of  land,  which  he  supposes  is  his  own. 
and  which  mistake  would  have  appeared  had  he  examined 


83.     Chapin      Mining      Co.      v.  era].  138  Mich.  689,  691. 

Uddenburg,  126  Mich.  375.  C.  L.  85.    Kent    v.    Auditor    General, 

13876.  138   Mich.   605. 

M.     Hoffman    v.    Auditor   Gen- 


§  156  THE  LAW  OF  TAXATION  212 

the  records,   such  an  erroneous  payment   will  be  deemed 
voluntary  and  cannot  be  recovered86. 

§156.     Certificates,  Etc.,  As  Payment. 

The  court  will  treat  a  certificate  of  payment  of  taxes,  or 
a  certificate  that  no  taxes  are  due,  or  returned,  given  by 
an  officer  acting  within  the  scope  of  his  power,  as  a  pay- 
ment for  the  purpose  of  cancelling  a  tax  sale,  even  though 
the  tax,  in  fact,  may  not  have  been  paid.  As  a  general 
rule,  such  a  certificate,  while  sufficient  to  cancel  the  tax 
sale,  leaves  the  owner  to  pay  the  tax,  if  it  is  still  unpaid, 
with  interest  to  the  date  of  the  certificate.  As  broadly 
stated,  the  rule  is  that  if  a  land  owner  in  good  faith,  ap- 
plies to  the  proper  officer  for  the  purpose  of  paying  his 
tax,  and  is  prevented  by  the  mistake,  fraud,  wrong,  or 
fault  of  the  officer,  such  attempt  to  pay  is  equivalent  to 
payment87.  The  wrong  information  may  be  given  by  let- 
ter88 ;  or  it  may  be  given  verbally  by  the  collector  or  treas- 
urer89. Such  a  certificate,  to  be  available,  must  be  made 
before  the  sale  for  taxes,  and  while  there  exists  a  right  of 
payment  to  the  officer  making  it.  A  certificate  of  the  county 
treasurer  will  not  apply  to  taxes  which  have  been  returned 
to  the  auditor  general  and  the  land  bid  in  to  the  state, 
though  such  sale  be  set  aside,  if  for  reasons  not  affecting 
the  validity  of  the  taxes90.  A  certificate  that  taxes  are 

86.  Bateson     v.     Detroit,     143  112     Mich.     597;      Kneeland     v. 
Mich.  582.  Hyman,  118  Mich.  56. 

87.  Kneeland     v.     Wood,     117  89.     Hoffman   v.    Auditor    Gen- 
Mich.      174,      176;      Hoffman      v.  eral,    136    Mich.    689;    Hough    v. 
Auditor  General,   136    Mich.    689,  Auditor   General,   116   Mich.   663; 
692 ;    Hayward   v.    O'Connor,    142  Kneeland  v.  Wood,  117  Mich.  174. 
Mich.     230;     Wood     v.     Bigelow,  90.     Shulte  v.  Auditor  General, 
115  Mich.  123,  where  the  tax  had  131   Mich.   676;   holding  that   the 
been  paid  and  the  land  erroneous-  right     to     pay     under    "§§58.     59, 
ly  returned.  ceased  on  the  original  sale  to  the 

88.  Hand   v.    Auditor    General,  state. 


:.M:»    COLLECTION  OF  LJEN  FOR  AND  LIABILITY  FOR  TAX  §  156 

paid  relates  only  to  such  instruments  or  records  as  arc 
properly  kept  by  the  officer  making  the  certificate91,  and  a 
certificate  made  by  a  county  treasurer,  purporting  to  relate 
to  records  in  the  office  of  the  auditor  general,  is  without 
force,  and  will  not  affect  the  sum  to  be  paid  on  a  redemp- 
tion of  the  land92.  The  certificate  required  to  be  furnished 
by  the  county  treasurer,  for  the  purpose  of  registering 
deeds,  certifying  that  there  are  no  unpaid  taxes,  or  tax 
liens,  on  the  premises,  is  not  such  a  certificate  as  is  con- 
templated by  §§70  and  98  of  the  tax  law,  and  will  not 
avoid  a  sale  where  the  land  had  been  bid  in  to  the  state. 
Moreover,  erroneous  information  given  by  the  county  treas- 
urer to  a  land  owner  seeking  to  avoid  a  tax,  not  to  pay  it, 
will  not  afford  grounds  for  setting  aside  a  tax  sale93.  A 
certificate  of  the  city  treasurer  of  Detroit  as  to  the  amount 
due  the  city  on  lands  bid  in  to  the  city  is  not  a  certificate 
that  he  is  bound  to  make,  and  will  not  protect  a  subsequent 
mortgagee  from  having  to  pay  a  larger  sum94.  Where  a 
tax  for  one  year  was  ordered  reassessed  the  next  year,  and 
then  the  first  levy  was  returned  delinquent  and  the  land 
sold,  the  owner  was  held  entitled  to  rely  upon  the  assump- 
tion that  the  second  levy  would  be  enforced,  and  have  the 
sale  based  upon  the  first  levy  set  aside.98.  After  notice  of 
tax  purchase,  a  bona  fide  payment  to  the  register  of  the 
court  within  the  six  months,  will  protect  the  owner  against 
the  loss  of  his  property,  where  the  auditor  general  had 
deeded  the  same  land  twice  by  mistake,  though  payment 


91.  Van  Husan  v.  Heames,  98  142  Mich.  122;  Wclevcr  v.  Auditor 
Mich.  504.  General,  143  Mich.  311. 

92.  Shulte  v.  Auditor  General,  94.    Gray  v.  Detroit,  113  Mich. 
131  Mich.  676;  Blondin  v.  Griffin,  657. 

133  Mich.  647.  95.    Youngs    v.    Auditor    Gen- 

93.  Bullock  v.  Auditor  General.  eral,  118  Mich.  550. 


§  156  THE  LAW  OF  TAXATION 

was  made  to  the  holder  of  the  void  tax  deed.  In  such  a 
case,  however,  the  owner  will  be  obliged  to  pay  to  the 
holder  of  the  legal  tax  deed  the  purchase  price  and  the 
penalties96. 

§157.     Payment.     Voluntary. 
Statutory  Provision. 

Act  No.  8  of  Public  Acts  of  1909,  amending  §98a,  of  the 
Tax  laws,  provides : 

"When  taxes  have  been  actually  paid  to  the  officer 
authorized  by  the  provisions  of  this  act  to  receive  the 
same,  and  the  entry  of  such  payment  was  not  made  upon 
the  tax  roll,  the  person  thereafter  applying  for  a  certifi- 
cate of  error  or  a  cancellation  of  the  taxes  shall  present 
to  the  auditor  general  the  certificate  of  the  proper 
county  treasurer  that  such  taxes  were  paid  on  the 

day  of 

(giving  date,)  as  appears  from  copy  or  receipt  therefor 
on  file  in  his  office.  The  county  treasurer  shall  make  a 
certified  copy  of  receipts  so  presented  to  him  and  file 
the  same  in  his  office,  and  shall  return  to  the  person 
entitled  thereto  the  original  receipt.  It  shall  be  the 
duty  of  the  county  treasurer  to  immediately  notify  the 
person  or  officer  receiving  such  payment  of  the  pro- 
duction of  such  receipt  and  require  payment  to  be  made 
forthwith  to  him,  the  said  county  treasurer,  of  the 
amount  not  discharged  by  entry  upon  the  tax  roll  at  the 
time  of  payment.  And  in  case  of  failure  of  said 
delinquent  treasurer  to  pay  said  amount,  as  requested, 
within  thirty  days  of  the  receipt  of  said  notice,  it  shall 
be  the  duty  of  the  county  treasurer  so  notifying  to  in- 
stitute suit  against  delinquent  treasurer  and  his  bonds- 

96.     Miller  v.  Steele,  146  Mich.       123. 


215    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §   157 

men  for  the  recovery  of  said  amount.  Upon  the  receipt 
of  such  money  so  paid  to  him,  the  county  treasurer  shall 
at  once  pay  the  same  over  to  the  proper  township  or 
other  officer  or  fund  entitled  to  the  same,  and  shall 
notify  the  board  of  supervisors  at  their  annual  sessi'  .n 
in  October  of  the  several  amounts  thus  collected  and 
paid  over." 

Where  a  payment  of  the  tax  is  made  upon  the  demand 
of  the  collector,  but  the  payor  knows  at  the  time  of  pay- 
ment that  the  collector  could  not  sell  property  for  this  tax, 
and  did  not  intend  so  to  do,  the  payment  is  voluntary. 
Even  though  the  tax  was  void,  it  would  not  be  a  payment 
made  under  coercion87.  When  the  parties  do  not  stand 
upon  an  equal  footing,  as  where  one  person  has  the  goods 
of  another  and  refuses  to  deliver  them  except  upon  the 
payment  of  an  illegal  exaction,  or  where  the  payment  is 
made  to  release  personal  property  from  seizure,  actual  or 
threatened,  when  the  person  making  the  threat  has  the 
present  ability  to  make  his  threat  good,  or  when  a  sale  of 
the  real  estate  assessed  would  constitute  a  cloud  upon  the 
title,  the  payment  is  not  voluntary.  When,  however,  no 
property  is  held  by  the  party  making  the  demand,  and  no 
seizure  is  made  or  threatened,  and  there  is  no  way  of  com- 
pelling payment  except  by  the  sale  of  the  property  assessed, 
which,  if  carried  out  could  injure  no  one  but  the  purchaser, 
the  payment  is  voluntary.  This  rule  has  been  carried  so 
far  as  to  hold  that  a  payment  of  taxes  assessed  under  an 
unconstitutional  law,  is  voluntary,  upon  the  principle  that 
every  person  is  presumed  to  know  a  void  law,  and  conse- 

97.     Cox  v.  Welcher,  68   Mich.      263. 


S  157  THE  LAW  OF  TAXATION  216 

quently  to  know  that  payment  could  not  be  enforced.  Un- 
der these  circumstances,  a  protest  has  no  effect98.  Unless 
there  is  immediate  pressure,  or  the  tax  has  become  a  lien 
upon  the  land,  a  payment,  though  made  under  protest,  will 
be  deemed  voluntary  unless  expressly  authorized  by 
statute.  Where  property  is  not  assessed  to  the  real  owner, 
his  property,  in  the  absence  of  any  estoppel,  cannot  be 
levied  upon ;  and  the  owner  will  not  be  deemed  under  pres- 
sure to  pay  the  tax  in  the  absence  of  an  actual  levy".  In 
cases  where  the  property  of  a  stranger  is  seized  for  the 
tax  of  another,  any  payment  made  before  the  actual  taking 
possession  o'f  the  property  will  be  deemed  voluntary,  even 
though  an  actual  levy  has  been  made  and  the  property  is 
in  the  constructive  possession  of  the  collecting  officer.  The 
act  of  the  collecting  officer  is  ultra  vires,  and  the  remedy  of 
the  owner  is  replevin.  The  distinction  between  voluntary 
and  involuntary  payment  in  such  cases  seems  to  be  the  im- 
mediate and  urgent  necessity  for  the  payment,  which  neces- 
sity will  not  be  deemed  to  exist  unless  the  officer  is  in  actual 
possession  of  the  property  and  there  is  not  ample  time  in 
which  to  bring  replevin1.  Where  an  unfounded  or  illegal 
demand  is  made  upon  a  person,  and  the  law  furnishes  him 
adequate  protection  against  it,  or  gives  him  an  adequate 

98.     Minor      Lumber      Co.      v.  The   City,  2   Sandf.  475;  Lott  v. 

Alpena,    97    Mich.    499,    501.     In  Sweezy,  29  Barb.  87 ;  Union  Bank 

Detroit  v.   Martin,   34   Mich.   170,  v.     New     York,     51     Barb.     159; 

174,  it  is  held  that  a  tax  void  on  Preston   v.    Boston,    12    Pick.    13 ; 

its   face,  does  not  create  a  cloud  Lee  v.    Inhabitants,    etc.,  13  Gray, 

on  title,  nor  would  a  sale  of  the  479. 

land    therefor ;    and    that    a    pay-  99.     Curry  v.   Tawas   Twp.,   81 

ment  of  such  a  tax  under  threat-  Mich.  355. 

ened  levy  is  voluntary.    Whitney  1.     Betts   v.   Reading,  93   Mich, 

v.    Port    Huron,    88    Mich.    270 ;  77 ;  neither  can  a  liquor  tax  paid 

Sheldon  v.  School  Dist.,  24  Conn,  under  a  void  ordinance  be  deemed 

91  ;    Bulkley    v.    Stewart,    1    Day  voluntary.     Eslow  v.   Albion,    153 

(Conn.)    133;    Forest    v.    Mayor,  Mich.  720. 
etc.,  13  Abbott  351;  Fleetwood  v. 


,'  1  ;     COLLECTION  OF  LIEN  FOR  AM)  LIABILITY  FOR  TAX    ?    1  "M 

remedy  in  the  premises,  if  he  pay  what  is  demanded,  in- 
stead of  taking  the  protection  the  law  gives  him  or  the 
remedy  it  furnishes,  he  is  to  be  deemed  to  have  made  the 
payment  voluntarily,  and  he  must  abide  by  it.  There  is  a 
class  of  cases  where,  although  there  be  a  legal  remedy,  his 
situation,  or  the  situation  of  his  property,  is  such  that  the 
legal  remedy  would  not  be  adequate  to  protect  him  from 
irreparable  prejudice, — where  the  circumstances  and  the 
necessity  to  protect  himself  or  his  property  otherwise  than 
by  resort  to  legal  remedy  may  operate  as  a  stress  or  coercion 
upon  him  to  comply  with  the  illegal  demand.  In  such  cases 
his  act  will  be  deemed  to  have  been  done  under  legal  duress, 
and  not  of  his  free  will2.  Any  payment  of  taxes  to  the 
county  treasurer  will  be  deemed  voluntary,  since  he  has 
no  power  to  levy*.  A  payment  of  tax  upon  the  wrong  piece 
of  land,  not  assessed  to  such  payor,  made  through  the 
erroneous  or  fraudulent  misrepresentations  of  the  collector, 
may  be  recovered4 ;  but  when  the  party  paying  makes  the 

2.  Louden    v.    East    Saginaw.  is   held   that,   "If   the   demand   is 
41    Mich.    18.   23;    Baker   v.    Big  illegal    and    the    party    can    save 
Rapids,  65   Mich.  76;  Babcock  v.  himself  and  his  property  no  other 
Beaver  Creek  Twp.,  65  Mich.  479.  way.   he   may  pay   under   protest 
In  Loud  &  Sons  Lumber  Co.  v.  and  recover  it  back;  but  if  other 
Vienna  Twp.,  120  Mich.  382,  the  means  are  open  to  him  by  which 
collector     levied     upon     personal  he   may   prevent   the   sale   of   his 
property  and  offered   it   for  sale.  property,    if    a    day    in    court    is 
The    owners    agent    bid    in    the  accorded  to  him,  he  must  resort 
property,    and    sent    the    collector  to  such  means.    Thus,  the  seizure 
into     another     township     to     the  of  a  man's  goods  under  a  land- 
owner, to  get  his  pay.    Held,  that  lord's  warrant  for  rent  that  is  not 
this  was  a  voluntary  payment,  and  due.    or    for    more    than    is   due, 
that  no  protest  would  be  good  in  would  seem  to  be  duress  as  much 
such  case  unless  the  reasons  were  as    the    seizure    of    property    for 
assigned.  taxes;      yet.      if      the     unlawful 

3.  Canfield     Lumber     Co.     v.  demand    for   rent   be   paid   under 
Manistee    Twp..    100    Mich.    4M,  protest,    it    cannot    be    recovered 
468,  472.  back,  for  the  reasons  above  stated. 

4.  De  Graff  v.  Ramsey  Co.,  46  that   the  tenant  can   replevin   the 
Minn.  319.  320.    In  De  La  Cuenta  goods,   and   try  the  issue  of  no 
v.  Ins.  Co.,  136  Pa.  St.  «Z,  30,  It  rent  in  arrear  before  a  jury."   In 


158 


THE  LAW  OF  TAXATION 


218 


mistake,  alone,  the  payment  will  be  deemed  voluntary  and 
cannot  be  recovered6.  A  liquor  tax  paid  before  the  appro- 
val of  the  bond,  cannot  be  recovered  back  even  though  the 
party  does  not  engage  in  business;  and  all  persons  who 
would  authorize  such  payment  would  be  personally  liable 
to  the  municipality6.  Neither  can  a  liquor  tax,  paid  under 
threat  of  prosecution,  be  recovered  back,  though  the  ordi- 
nance under  which  it  was  levied  was  void7. 


§158.     Payment.     Involuntary. 

A  demand  of  payment  by  an  officer  having  a  warrant 
involves  an  implication  that  payment  will  be  enforced  if 
not  made ;  and  the  authorities  do  not  require  an  actual  levy, 


Knibbs  v.  Hall,  1  Esp.  84,  it  is 
held  that  a  threat  of  distress  for 
rent  is  not  duress  because  the 
party  may  replevin  the  goods  dis- 
trained, and  try  the  question  of 
liability  at  law.  In  Mfg.  Co.  V. 
Amesbury,  17  Mass.  461,  and  in 
Preston  v.  Boston,  12  Pick-  14,  it 
is  held  that  when  a  party  not 
liable  to  taxation  is  called  upon 
peremptorily  to  pay  upon  a  tax 
warrant,  and  he  can  save  himself 
and  his  property  in  no  other  way 
than  by  paying  the  illegal  demand, 
he  may  give  notice  and,  by  show- 
ing that  he  is  not  liable,  recover 
it  back  as  money  had  and  re- 
ceived. In  Glass  Co.  v.  Boston, 
4  Mete.  181,  187,  the  rule  is  stated 
as  follows :  "If  a  party,  with  full 
knowledge  of  all  of  the  facts  of 
the  case,  voluntarily  pays  money 
in  satisfaction  or  discharge  of  a 
demand  unjustly  made  on  him,  he 
cannot  afterwards  allege  such 
payment  to  have  been  made  on 
compulsion,  and  recover  back  the 
money,  even  though  he  should 
protest  at  the  time  of  such  pay- 
ment that  he  was  not  legally 


bound  to  pay  the  same.  The 
reason  of  the  rule,  and  its  pro- 
priety, are  quite  obvious  when 
applied  to  cases  of  payment  upon 
a  mere  demand  for  money,  un- 
accompanied by  any  powers  or 
authority  to  enforce  such  demand 
except  by  a  suit  at  law."  In 
Chicago  v.  Bank,  11  111.  App.  165, 
it  is  held  that  the  fact  that  the 
collector's  warrant  under  the 
statute,  was  a  lien  upon  the  prop- 
erty taxed,  does  not  constitute 
duress  or  its  equivalent.  In 
Merrill  v.  Austin,  53  Cal.  379,  » 
payment  is  held  voluntary  because 
the  collector  was  not  then  in  a 
position  to  enforce  collection  by  a 
sale  of  plaintiff's  property. 

5.  Weston    v.    Luce    Co.,    102 
Mich.    528;    but    there    is    a   con- 
trary holding  in  State  v.  Nelson, 
41  Minn.  25,  which  the  Michigan 
Court  refuses  to  follow. 

6.  Kent    v.    Auditor    General, 
138  Mich.  605. 

7.  Bateson      v.      Detroit      143 
Mich.  582;  Bateson  v.  Phelps,  145 
Mich.  805. 


219    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §  158 

or  require  proof  that  a  levy  could  be  made  on  tangible 
property.  If  a  party  yields  to  the  legal  menace,  it  cannot 
be  presumed,  in  favor  of  the  exactor  of  payment,  that  there 
were  no  means  of  enforcement.  A  payment  under  such 
circumstances  is  involuntary;  and  in  an  action  to  recover 
the  tax  the  party  will  not  be  limited  to  the  reasons  speci- 
fied in  his  protest8,  nor  to  thirty  days  in  which  to  bring 
suit*.  There  must,  however,  be  compulsion,  actual,  present 
and  potential,  in  inducing  the  payment  by  force  of  process 
available  for  instant  seizure  of  person  or  property10.  The 
payment  is  not  rendered  voluntary  because  the  owner  points 
out  the  property  upon  which  to  levy11.  In  an  action 
against  the  municipality  to  recover  money  paid  under  pro- 
test, it  will  be  presumed,  in  the  absence  of  proof  to  the 
contrary,  that  the  money  was  paid  over  to  the  treasurer. 
In  cases  of  special  assessments,  excepting  drain  taxes,  the 
municipality  will  be  liable  the  same  as  for  general  taxes13. 
Where  an  extension  of  time  is  granted  a  tax  payer,  under 

8.  See      Voluntary      payment.  City  v.  Packet  Co.,  45  la.  185.   In 
Babcock   v.    Beaver   Creek   Twp.,  Mays   v.    Gncinnati,    1    Ohio    St. 
84  Mich.  601 ;  Lyons  v.  Harris,  5*  268,  it  is   held    that    to   make  tae 
Mich.     272.      In     First     National  payment  of  an  illegal  demand  in- 
Bank  v.   Watkins,   21    Mich.   483.  voluntary,    it    must    be    made    to 
489,   an    officer   collecting   a   void  appear  that  it  was  made  to  release 
specific  tax  under  threat  of  levy  the    person    or    property    of    the 
is  held  liable  Jn  assumpsit.     The  party  from  detention,  or  to  pre- 
payment  of   the    money   over   to  vent   a   seizure   of   either  by   the 
the  state  did   not  exonerate  him.  other     party,      having     apparent 
Nicodemus   v.    East    Saginaw,   25  authority  to  do  so. 

Mich.   456;    Woodmere    Ass'n.   v.  11.     Roedel     v.     White     Goud, 

Spring    Wells    Twp.,    130    Mich.  108  Mich.  506;  Barnhard  v.  White 

466.  Cloud,  108  Mich  508. 

9.  Pere  Marquette  Ry.  v.  Lud-  12.    Nicodemus    v.    East    Sag- 
ington,  133  Mich.  397.  inaw,  25  Mich.  456;  Grand  Rapids 

10.  Harvey   v.    Bank.    119    Pa.  v.  Blakely,  40  Mich.  367.  holding 
St.  212;   Canfield  Lumber  Co.  r.  that  interest  is  recoverable ;  Grand 
Manistee    Twp.,    100    Mich.    468,  Rapids  v.  Leonard,  40  Mich.  370: 
471 ;  Glass  Co.  v.  Boston,  4  Mete.  Gebhart    v.     East     Saginaw,    40 
181.     187;     Wanbaunsee     Co.     v.  Mich.  338. 

Walker,  8   Kans.   431 ;   Mttscatine 


£  159  THE  LAW  OF  TAXATION  220 

a  provision  to  pay  them,  some  courts  hold  that  such  exten- 
sion is  a  good  consideration  to  enforce  the  payment  of  the 
tax,  though  it  be  illegal13;  but  when  the  right  to  protest  is 
reserved,  the  party  so  obtaining  the  extension,  does  not  lose 
his  right  to  contest  the  payment  of  the  tax14.  The  Court 
does  not  recognize  any  distinction  between  taxes  "volun- 
tarily paid  under  protest,"  and  taxes  "paid  under  duress 
of  levy."  In  either  case,  the  payment  cannot  be  recovered 
for  mere  irregularities,  but  the  tax  itself  must  be  illegal 
and  void.  The  township  will  not  be  liable  for  illegal  fees 
collected  and  retained  by  its  collecting  officer15. 

§159.     Common  Law  Protests. 

When  an  officer  demands  a  sum  of  money  under  a  war- 
rant directing  him  to  enforce  it,  the  party  of  whom  he 
demands  it  may  fairly  assume  that,  if  he  seeks  to  act  under 
the  process  at  all,  he  will  make  it  effectual.  The  demand 
itself  is  equivalent  to  the  service  of  a  writ  on  the  person. 
Any  payment  is  to  be  regarded  as  involuntary  which  is 
made  under  a  claim  involving  the  use  of  force  as  an  alter- 
native, as  the  party  of  whom  it  is  demanded  cannot  be  com- 
pelled or  expected  to  await  actual  force,  and  cannot  be  held 
to  expect  that  an  officer  will  desist  after  once  making  a 
demand18.  This  is  particularly  true  when  the  property  is 
advertised  for  sale.  The  tax  payer  has  a  right  to  presume 
that  the  collecting  officer  will  proceed  with  the  sale.  The 
fact  that  the  sale  would  have  conveyed  no  title  on  account 


13.  Cachet  v.   McCall,  50  Ala.  16.     Atwell   v.   Zeliff,   26   Mich. 
307.  118;     First     National     Bank     v. 

14.  Battle     Creek     Sanitarium  Watkins,   21    Mich.   483;    Thomp- 
etc.    v.    Battle    Creek,    138    Mich,  son  v.  Detroit,  114  Mich.  502,  507 ; 
676.  Nicodemus    v.    East    Saginaw,    25 

15.  Godkin  v.  Doyle  Twp.,  143  Mich.  456. 
Mich.  236. 


221    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §  160 

of  the  illegality  of  the  tax,  or  that  the  cloud  upon  title 
caused  by  such  sale  could  be  removed  by  legal  proceed- 
ings, has  no  bearing  upon  the  right  to  pay  under  protest 
and  thereby  stop  the  sale.  Nor  is  it  any  the  less  an  involun- 
tary payment  under  the  law.  If  the  citizens  property  is 
threatened  with  seizure  under  a  tax  warrant,  or  his  real 
estate  is  advertised  for  sale  to  collect  delinquent  taxes,  he 
is,  equally  in  both  cases,  entitled  to  free  his  property  by  a 
payment  under  protest,  and  such  payment  will  not  be  con- 
sidered voluntary17.  The  protest  specified  need  not  specify 
the  reasons  for  the  illegality  of  the  tax,  but  information, 
generally,  that  the  tax  payer  considers  the  tax  illegal  and 
that  he  pays  them  unwillingly,  is  sufficient.  The  statutory 
protest  did  not  originally  apply  to  a  tax  on  personal  prop- 
erty so  that  the  only  protest  there  available  was  the  com- 
mon law  protest18.  The  statute  has  since  been  amended  to 
include  it. 

§160.     Statutory  Protest. 

Most,  if  not  all,  city  and  village  charters,  provide  that 
before  bringing  suit  against  the  municipality,  a  claim  should 
be  presented  to  the  council,  who  should  have  a  reasonable 

17.  Whitney  v.  Port  Huron,  88  cause  the  tax  payer  has  no 
Mich.  270.  This  question  was  dis-  remedy  by  injunction  to  prevent 
cussed  but  not  decided  in  21  Mich.  the  sale ;  but  in  Nicodemus  v. 
483,  supra.  The  statement  in  De-  East  Saginaw,  25  Mich.  458.  it  is 
troit  v.  Martin,  34  Mich.  170,  that  held  that  the  Michigan  authorities 
where  a  sale  of  real  estate  do  not  compel  the  remedy  by  in- 
assessed  would  not  constitute  a  junction. 

cloud     upon     title,     the    payment  18.    In    Lyons    v.     Harris,    52 

made    to    relieve    it    of    the    tax  Mich.  272,  the  collector  demanded 

would  be  voluntary,  is  a  dictum,  the   tax   and   threatened    to   levy, 

and  contrary  to  the  above  cases.  The  law  then  in  force.  H.  S.  p. 

In  Weston  v.  Luce  Co.,  102  Mich.  1277,   9  42,  did  not  apply  to  per- 

533.  the  question  was  not  decided.  sonal  property.     Babcock  v.  Beaver 

In    Insurance    Co.    v.    Allegheny.  Creek  Twp..  64   Mich.  601 ;   Bab- 

101    Pa.    St.    2.*ifi.    a    payment    to  rork    v.    Beaver    Creek    Twp..   65 

prevent   sale  is  held  vountary  be-  Mich.  479. 


§  160  THE  LAW  OF  TAXATION  222 

opportunity  to  investigate  the  same.  This  provision  ap- 
plies to  money  paid  for  taxes  under  protest,  and  is  a  con- 
dition precedent  to  bringing  suit19. 

• 

Statutory  Provision. 

C.  L.  §3876,  as  amended  by  Act  130  of  the  Public 
Acts  of  1901,  is  as  follows :  "Any  one  may  pay 
the  taxes,  or  any  one  of  the  several  taxes,  on  any  par- 
cel or  descriptio'n  of  land,  or  on  any  undivided  share 
thereof,  and  the  treasurer  shall  note  across  the  face 
of  the  receipt  in  ink  any  portion  of  the  taxes  remaining 
unpaid.  He  may  pay  any  tax,  whether  levied  on  per- 
sonal or  real  property,  under  protest,  to  the  treasurer, 
specifying  at  the  time  in  writing,  signed  by  him,  the 
grounds  of  such  protest,  and  such  treasurer  shall 
minute  the  fact  of  such  protest  on  the  tax  roll  and 
in  the  receipt  given.  The  person  paying  under  such 
protest  may,  within  thirty  days  and.  not  afterwards, 
sue  the  township  for  the  amount  paid,  and  recover,  if 
the  tax  is  shown  to  be  illegal  for  the  reason  shown  in 
such  protest." 

In  an  action  brought  to  recover  taxes  paid  under 
the  statutory  protest,  the  assessment  cannot  be  shown 
to  be  invalid  for  any  reasons  not  specified  in  the 
protest20.  Where  money  is  paid  before  the  collector 

19.  Crittenden  v.  Mt.  Clemens,  inaw,  41  Mich.  18. 
86  Mich.  221,  227.  In  Babcock  v.  20.  Aurora  Iron  Mining  Co.  v. 
Beaver  Creek  Twp.,  64  Mich.  601,  Ironwood,  119  Mich.  325;  Pen- 
where  property  is  actually  seized  insular  Iron  Co.  v.  Crystal  Falls 
upon  a  levy,  and  a  protest  filed,  Twp.,  60  Mich.  510 ;  Peninsular 
the  tax  payer  is  not  limited  to  the  Iron  Co.  v.  Crystal  Falls  Twp.,  80 
reasons  specified  in  his  protest  Mich.  79 ;  any  protest  before  the 
'filed,  for  contesting  the  levy  5  officer  can  levy,  must  be  the 
Mead  v.  Lansing,  56  Mich.  601;  statutory  protest,  and  specific. 
Detroit  v.  Mich.  Paving  Co.,  58  Mills  v.  Richland  Twp.,  72  Mich. 
Mich.  601 ;  Louden  v.  East  Sag-  100. 


223    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX  §  160 

can  levy  to  satisfy  the  tax,  the  protest  must  be 
specific  and  distinctly  set  forth  the  reasons  why  the  tax  is 
illegal.  A  general  protest  is  of  no  avail  under  such  cir- 
cumsta*nces21.  In  other  words,  where  there  is  no  threat  or 
demand  of  payment,  a  specific  statutory  protest  gives  a  right 
of  action  when  the  payment  might  otherwise  be  volun- 
tary22. The  statutory  protest  is  available  only  when  the 
tax  itself  is  illegal,  and  for  the  specific  reasons  specified 
therein.  This  protest,  consequently,  is  not  available  whert 
the  tax  is  valid,  but  the  collector  levies  upon  the  property 
of  a  stranger  to  satisfy  the  tax.  In  such  case,  the  aggrieved 
party  is  left  to  his  common  law  remedies ;  he  cannot  pay  the 
tax  to  the  collector  under  protest  and  recover  it  back23.  The 
statutory  protest,  moreover,  does  not  apply  to  a  drain  special 
assessment  because  the  municipality  is  not  liable  for  the 
drain  tax24.  It  did  not  originally  apply  to  taxes  upon  per- 
sonal property;  but  the  statute  as  now  amended  applies  to 
taxes  upon  both  real  and  personal  property25.  The 
statutory  protest  does  not  apply  to  taxes  paid  to  the  county 
treasurer.  This  officer  cannot  enforce  the  tax  by  levy,  and 
such  a  payment  to  him  is  voluntary26.  The  statutory  pro- 
test may  be  made  in  the  case  of  drain  taxes  at  any  time 
when  the  tax  can  be  paid;  and  where  it  is  impossible  to 

21.  Louden    v.    East    Saginaw,      Twp.,    72    Mich.     100;    Gage    v. 
41  Mich.  18 ;  Peninsular  Iron  Co.      Saginaw,  128  Mich.  682. 

v.  Crystal  Falls  Twp.,  60  Mich.  79  23.     Canfield     Lumber     Co.     v. 

and  510 ;  McFarlan  v.  Cedar  Creek  Manistee    Twp.,    100    Mich.    466~. 

Twp.,    93    Mich.    558.     In    Mich.  467. 

Land    Co.    v.    Republic    Twp..    6!>  24.    Atwell   v.   Zeliff,  26   Mich. 

Mich.  628,  it  is  held  that  the  pro-  118. 

test    could    accompany    the    draft  25.    Lyons      v.      Receiver      of 

which  paid   the  taxes,  and  could  Taxes,  52  Mich.  271;   Weston  v. 

be  proven  by  copy.  Luce  Co.,  102  Mich.  528. 

22.  White   v.    Millbrook   Twp.,  26.    Weston   v.    Luce    Co..    10S 
60  Mich.  532 ;  Cox  v.  Welcher,  68  Mich.  528. 

Mich.     263;     Mills     v.     Richland 


§  161  THE  LAW  OF  TAXATION  224 

operate  the  legal  from  the  illegal  tax,  the  entire  sum  paid 
may  be  recovered27. 

The  right  to  sue  in  these  cases  is  not  limited  to  the 
owner  who  pays  under  protest;  but  the  person  owning  the 
land  may  assign  his  right  of  action  to  a  third  person,  who 
may  bring  the  action.  This  statute  does  not  interfere  with, 
or  limit,  the  operation  of  the  general  statute  regulating  the 
assignment  of  rights  of  action  and  suits  by  the  assignees 
thereof28.  An  interested  stockholder  of  a  corporation  may 
pay  the  tax  of  the  corporation  under  protest  and  being 
action  in  his  own  name  to  recover  the  money  back.  Over- 
valuation a  'favoritism  in  fixing  values  by  the  board  of  re- 
view is  good  grounds  under  C.  L.  §3899,  for  setting  aside 
the  tax.  The  entry  of  the  time  of  payment  of  the  tax  upon 
the  treasurers  books  is  not  conclusive  of  the  time  payment 
was  made28.  When  a  tax  payer  simply  protests  against 
payment,  without  assigning  any  reasons  therefor,  the  pay- 
ment is  voluntary  in  the  absence  of  some  kind  of  duress30. 

§161.     Demand  for  Tax. 

The  statute  requires  a  personal  demand  upon  resident 
owners  of  property  for'  the  tax,  but  if  this  provision  should 
be  mandatory,  it  will  at  least  be  presumed  that  such  demand 
was  made,  in  the  absence  of  a  contrary  showing31. 

Statutory  Provision. 

C.  L.  §3869  provides :    "For  the  purpose  of  collect- 
ing the  taxes  remaining  unpaid  on  the  Tenth  day  of 

27.  Laing  v.  Forest  Twp.,   139      142  Mich.  194. 

Mich.  159.  30.     Traverse    Beach    Ass'n    v. 

28.  Williams  v.     Merritt,    152      Elmwood  Twp.,  142  Mich.  78. 
Mich.  621.  31.     Dickinson  v.   Reynolds,   48 

29.  Lingle   v.  Elmwood    Twp.,      Mich.  159. 


226    COLLECTION  OF  LIEN  FOR  AND  LIABILITY  FOR  TAX   ^    1'..' 

January,  the  said  treasurer  shall,  thereafter  during 
that  month,  call  personally  upon  each  person  liable  to 
pay  such  taxes,  if  a  resident  of  such  township,  or  at 
his  usual  place  of  residence  or  business  therein,  and 
demand  payment  of  the  taxes  charged  against  him." 
This  section  further  provides  for  demand  of  tax  from 
non-residents  by  mail  and  for  demand  upon  the 
cashier  of  a  bank  for  the  tax  upon  the  capital  stock 
of  the  bank. 

Whatever  necessity  there  may  have  been  under  the  old 
system  of  the  collection  of  taxes  and  tax  sales,  a  lack  of 
demand  is  not  such  an  excuse  as  will  vacate  a  decree  of 
sale,  or  a  sale,  in  the  chancery  court3*. 

§162.     Tax  Receipts. 

A  tax  receipt  is  prima  facie  evidence  of  the  payment  of 
the  tax.  It  does  not  fall  within  the  rule  which  excludes 
hearsay  evidence  nor  does  it  rest  upon  the  principle  which 
admits  entries  made  by  third  persons  against  their  interests, 
or  in  the  ordinary  course  of  business.  The  giving  of  a 
receipt  for  taxes  by  the  township  treasurer  is  an  official  act 
which  the  statute  requires  him  to  perform.  The  manifest 
purpose  of  the  statute  was  to  furnish  the  tax  payer  with 
written  evidence  of  payment.  The  action  of  the  treasurer 
in  reference  to  the  payment,  receipts  and  returns  for  the 
taxes,  are  a  part  of  the  res  gestac  or  proceedings  upon  which 
the  tax  deed  depends.  The  receipt  is  therefore  origin.il 
evidence,  not  conclusive,  but  sufficient  until  invalidated  by 
proof88. 

32.    Auditor    General    v.    Spar-  Conley    v.    McMillan.    120    Midi 

row,    116   Mich.    574;    Hughes   v.  694. 

Jordan,  118  Mich.  27;  Hooker  >.  33.    Johnstone     v.      Scott.      11 

Bond.  118  Mich.  255;  Shefferly  v.  Mich.  232,  144. 
Auditor   General.   120  Mich.   455; 
(15) 


^  Hi:]  THE  LAW  OF  TAXATION  226 

Statutory  Provision. 

Act  212  of  Public  Acts  of  1905,  §98a,  provides,  in 
cases  of  delinquent  tax  lands,  that  where  a  tax  has 
been  paid,  and  the  payment  was  not  entered  upon  the 
collector's  roll,  the  owner  shall  file  his  receipt  with  the 
proper  county  treasurer,  who  shall  furnish  the  owner 
a  certified  copy  thereof,  to  be  used  in  procuring  a 
cancellation  of  the  sale  by  the  auditor  general.  The 
county  treasurer  is  likewise  required  to  collect  this 
money  back  from  the  local  treasurer. 
A  tax  receipt,  however,  is  not  of  itself  evidence  to  prove 

a  lien  on  premises  held  under  tax  title  for  taxes  paid;  the 

lien  is  proven  by  the  assessment  rolls34. 

^  163.     Levy. 

It  is  competent  for  the  legislature  to  authorize  a  seizure 
and  sale  of  any  property  in  the  possession  of  a  delinquent 
tax  payer.  If  the  property  belonged  to  some  other  person, 
such  person  may  have  his  remedy  against  the  delinquent 
tax-payer35. 

Statutory  Provision. 

C.  L  §3870,  as  amended  by  Act  215  of  Public  Acts 
of  1899,  provides:  "If  any  person,  firm  or  corporation 
shall  neglect  or  refuse  to  pay  any  tax  assessed  to  him 
or  them,  the  township  or  city  treasurer,  as  the  case 
may  be,  shall  collect  the  same  by  seizing  the  personal 
property  of  such  person,  firm  or  corporation,  to  an 
amount  sufficient  to  pay  such  tax,  fees  and  charges 
for  subsequent  sale,  wherever  the  same  may  be  found 

34.  Weitner  v.  Porter,  42  Mich.  35.  Sears  v.  Cottrell,  5  Mich. 
569.  274 ;  see  liability,  §154,  supra. 


i  "II  l.i    I  KI.\   OF   I. UN    Fo|<  AND  UAISII.FIY  FOR  TAX  §   1G3 

in  the  State,  and  from  which  seizure  no  property  shall 
be  exempt.  He  may  sell  the  property  seized  to  an 
amount  sufficient  to  pay  the  taxes  and  all  charges,  in 
the  place  where  seized,  or  in  the  township  or  city  of 
which  he  is  treasurer,  at  public  auction,  on  giving 
public  notice  of  the  same  at  least  five  days  previous  to 
the  sale,  by  posting  written  or  printed  notices  in  three 
public  places  in  the  township,  village  or  city  where  the 
sale  is  to  be  made,  which  sale  may  be  adjourned  from 
time  to  time  if  he  shall  deem  the  same  necessary ;  and 
in  case  property  shall  be  seized  and  advertised  as 
herein  directed,  during  the  life  of  the  warrant,  the  sale 
may  take  place  at  any  time  within  six  days  after  the 
expiration  thereof."  This  section  further  provides  that 
any  surplus  on  the  sale  shall  be  returned  to  the  owner ; 
if  the  property  cannot  be  sold  for  want  of  bidders, 
then  the  tax  shall  be  returned  unpaid.  The  township 
treasurer  may  also  sue  and  garnishee  for  any  tax  on 
personal  property.  If  any  person  having  possession 
of  the  personal  property  of  another,  is  obliged  to  pay 
the  tax  thereon,  he  may  recover  the  same  in  assumpsit 
from  the  person  for  whose  benefit  the  tax  was  paid. 
In  case  of  a  levy  for  taxes  upon  real  estate,  the  levy 
shall  be  released  if  within  ten  days  after  levy  the 
persons  having  title  to  the  land  shall  convey  the  same 
to  the  State  of  Michigan,  free  of  all  mortgages  and 
liens  whatsoever.  In  such  case,  the  board  of  state 
auditors  shall  pay  the  expenses  of  the  township  treas- 
urer in  making  such  levy. 

If  the  officer  levy  upon  a  stranger's  property  to  satisfy 
the  tax.  the  owner  cannot  resist  with  force;  if  he  does,  he 
will  be  criminally  liable  for  resisting  an  officer.  If.  how- 


§  163  THE  LAW  OF  TAXATION  228 

ever,  the  officer  attempted  to  take  exempt  property,  the 
owner  would  be  justified  in  offering  a  reasonable  resistance. 
In  such  a  case  the  act  of  the  officer  would  be  a  trespass3*. 
The  fact  that  the  property  is  assessed  to  a  co-partnership 
instead  of  a  corporation  will  not  defeat  a  levy  against  the 
corporation  when  it  is  the  owner  of  the  property  taxed  and 
the  successor  of  the  co-partnership37.  The  collector  may 
seize  and  sell  personal  property  by  virtue  of  his  warrant. 
If  he  holds  the  property  an  unreasonable  length  of  time 
before  sale,  he  does  not  become  a  trespasser  ab  initio,  but 
the  owner  of  the  property  may  recover  for  an  excessive 
charge  for  keeping  the  property38.  Though  a  portion  of 
the  tax  may  be  illegal,  yet  the  levy  will  hold  for  the  amount 
of  unpaid  legal  taxes39.  A  levy  cannot  be  made  upon 
personal  property  in  the  hands  of  an  assignee  for  the  benefit 
of  creditors  until  the  ten  days  have  expired  for  the  filing 
of  a  bond  by  the  assignee40.  Neither,  under  the  old 
statutes,  could  a  levy  be  made  for  the  tax  assessed  upon  the 
lands  of  a  non-resident41.  A  levy  may  be  made  upon  the 
property  of  the  real  owner  where  he  has  conveyed  his  prop- 
erty for  the  sole  purpose  of  avoiding  payment  of  his  tax42. 
Where,  however,  the  sale  is  bona  fide,  as  by  one  corporation 
to  its  successor,  the  stockholders  not  being  identical  in  the 
two  companies,  the  vendee  will  not  be  liable  for  the  tax 


36.  People  v.  Smith,  131  Mich.  38.     Bird   v.    Perkins,   33    Mich. 
570,  following  principle  of  People  28. 

v.  Clements,  68  Mich.  655.  39.     Lake   Superior   Ship   Canal 

37.  Petrie      Lumber      Co.      v.  Co.   v.    Thompson,    56   Mich.    493, 
Collins.  66  Mich.  64;  Farnsworth  498. 

Co.  v.  Rand,  Me.  65,  19.    In  Mich.  40.    Act  198  of  Laws  of   1871, 

Dairy  Co.  v.  McKinley.  70  Mich.  §1;    Lyons    v.    Harris,    52    Mich. 

574,    a    levy    was    sustained    upon  272,  279. 

corporate     property     for     a     tax  41.     Tweed  v.  Metcalf,  4  Mich. 

assessed  in  the  alternative  to  the  579,  601. 

corporation  or  its  manager.  42.     Gray  v.  Finn,  96  Mich.  62. 


•.".".'    •  O1  lit  TION   OK   I.IKN    FOR  AND  I.IAIUI.ITV   FOR  TAX 

assessed  against  the  vendor43.  A  levy  upon  personal 
property  by  the  collector  is  presumed  to  satisfy  the  tax, 
and  until  it  affirmatively  appears  that  the  sale  of  the 
personal  property  would  not  satisfy  the  tax,  a  bill  will  not 
lie  to  quiet  title44.  An  assignment  of  a  mortgage  owned 
by  partners  for  the  purpose  of  avoiding  taxation,  is  not 
a  fraud  upon  the  members  of  the  firm45. 

Under  C.  L.  §3871,  a  levy  may  be  made  upon  the 
personal  property  of  a  delinquent  tax  payer  situated  in 
another  township  from  where  the  property  is  assessed. 
Under  such  circumstances,  it  is  only  necessary  that  the  fair 
import  of  the  local  treasurers  certificate  comply  with  the 
statute,  showing  that  the  delinquent  has  no  personal  prop- 
erty in  that  township  at  that  time ;  it  need  not  be  worded  in 
the  language  of  the  statute46. 

§164.     Levy  Upon  Railroad  Property. 

It  cannot  be  supposed  that  the  legislature,  in  authorizing 
the  construction  of  a  railroad,  and  granting  peculiar  fran- 
chises for  its  operation  and  use,  ever  intended  that  execu- 
tion creditors  might  levy  upon  parcels  of  it,  and  cut  it  up 
into  sections,  and  destroy  it  as  a  great  public  thorough- 
fare47. The  railroad,  from  one  end  to  the  other,  is  an 


43.  Chippewa  Hardware  Co.  v.  City  Rv    76  Mich.  421,  427,  it  is 
Atwood,  127  Mich  338.  held  that  a  sale  would  have  to  be 

44.  Henry  v.  Gregory,  29  Mich.  of  the   franchise  as  a  whole,  the 
68.  purchaser  to  collect  the  tolls   for 

45.  Stradley  v.  Cargill  Elevator  a    certain    term    of    years.       In 
Co.,  135  Mich.  367.  Auditor  General   v.   Lake  George 

4f».     Godkin      v.      Corliss,     146  etc.,  Ry.,  82  Mich.  426,  it  is  held 

Mich.   507.  that  under  II.  S.  3403,  C.  L.  §6328 

47.  Georgia  v.  Ry.  Co.,  3  the  claim  for  specific  taxes  is  * 
Woods  434 ;  L.  S.  &  M.  S.  Ry.  v.  lien  on  all  personal  property ;  but 
Grand  Rapids,  102  Mich.  374;  that  the  railroad  company  is  en- 
Detroit  v.  Circuit  Judge,  127  titled  to  possession  until  the  state 
Mich.  604 ;  Hackley  v.  Mack,  60  by  proper  action  takes  it. 
Mich.  591.  In  Detroit  v.  Detroit 


§  164  THE  LAW  OF  TAXATION  230 

entirety,  and  as  a  whole,  may  be  subject  to  taxation  or 
coercive  sale.  Fragmentary  taxations  or  sales  might  be 
unjustly  vexatious  and  injurious  to  the  owners,  pervert  the 
destination  of  the  road,  and  disturb  the  public  use  and 
interest.  To  avoid  such  evils  and  absurdities,  the  law 
treats  a  railroad  and  all  its  appurtenances  as  one  entire 
thing,  not  legally  subject  to  coercive  severance  or  dis- 
location48. The  rule  has  generally  been  laid  down  that 
while  the  franchises  and  privileges  of  a  railroad  company, 
its  lands,  easements  and  things  essential  to  the  existence  of 
a  corporation,  or  necessary  to  the  enjoyment  of  its 
franchise,  could  not  be  sold  on  execution  to  satisfy  a  judg- 
ment at  law  against  it,  yet  the  locomotives,  cars  and  other 
personal  property  could  be  when  not  in  actual  use49.  A 
railroad  company  can  no  more  discharge  its  public  duties 
without  locomotives  and  passenger  and  freight  cars  than 
it  can  without  a  franchise,  a  track,  or  a  depot ;  and  yet  the 
existence  of  these  great  corporations  with  all  the  property, 
real  and  personal,  essential  or  at  least  highly  beneficial  to 
their  successful  operation,  entirely  exempt  from  execution 
at  law,  would  be  insufferable.  So  comprehensive  an  exemp- 
tion will  not  now  be  sustained.  So  far  as  any  general  rule 
can  be  formulated  upon  the  subject,  it  is  this :  That  prop- 
erty of  a  corporation  is  not  subject  to  execution  which  is 
not  subject  to  voluntary  transfer  by  the  corporation.  The 
mere  right  of  franchise  to  be  a  corporation  is  never,  in  the 
absence  of  special  statutory  authority,  subject  to  sale, 
whether  voluntary  or  under  execution80.  The  locomotives. 

48.  Applegate  v.  Ernst,  3  Bush      etc.,  Ry.  v.  Boney,   117  Ind.  501 ; 
643.  Williams  v.  Ry.  Co.,  29  N.  J.  Eq. 

49.  Chicago,  etc.,  Ry.  v.  -Ellson,      311. 

113  Mich.  30,  35  approving  the  50.  Plymouth  R.  R.  Co.  v. 
statement  of  the  text;  Louisville  Colwell,  39  Pa  St.  337. 


-.'••Jl     0)1.1. KCTION  OF  LIEN  FOR  AND  I.IAIHI.Il  V   1  <  »R  TAX   £    I  i'.4 

cars,  machinery,  etc.,  is  either  personal  or  real  property. 
It  must  in  the  nature  of  things  be  one  or  the  other.  It 
cannot  be  both,  nor  can  it  for  any  legal  purpose  be  said 
to  partake  of  the  nature  of  both.  It  has  always  heretofore 
been  treated  as  personal  property  liable  to  seizure  and  sale 
on  execution.  To  sell  the  rolling  stock  of  a  railroad  would 
no  more  be  a  destruction  of  the  road  in  legal  contemplation 
than  the  sale  of  a  farmer's  teams,  stock  and  farming 
utensils  would  be  a  destruction  of  his  farm.  In  either  case 
there  would  be  a  necessity  of  keeping  the  jiersonal  prop- 
erty, arising  out  of  the  pecuniary  inability  oi  the  owner  to 
replace  it,  and  thus  make  the  use  of  the  other  property,  to 
which  the  personality  was  essential,  profitable.  But  the  law 
regards  no  such  necessity  as  this  for  any  purpose;  and 
certainly  not  for  the  purpose  of  enabling  a  debtor  to  retain 
his  property  for  his  own  emolument,  and  set  his  creditors, 
or  any  class  of  them,  at  defiance51. 

The  court  of  New  York,  again,  in  discussing  whether 
cars  were  personal  property  subject  to  taxation  and  levy 
sale  for  the  tax,  or  real  estate,  holds,  that  if  they  were  the 
former,  no  question  can  be  made  but  that  the  collector  had 
the  right  to  levy  on  and  sell  them  for  the  purpose  of  collect- 
ing the  tax,  being  at  the  time  in  possession  of  the  company 
against  which  the  tax  warrant  was  issued,  irrespective  of 
the  lien  or  title  of  any  other  person  by  mortgage  or  other- 
wise. If  the  cars  were  a  part  of  the  real  estate,  it  is 
equally  clear  that  the  collector  had  no  right  to  levy  upon  or 
sell  them.  The  question  does  not  at  all  depend  upon  the 
length  of  the  road,  or  whether  the  road  of  one  company 
connects  with  that  of  others  of  the  same  gauge,  and  the 
companies  so  connecting,  in  the  transaction  of  their  busi- 

51.     Stevens    v.       Ry.     Co..    3t       Karb.  590. 


>    !'>•">  THE  LAW  OF  TAXATION  232 

ness,  are  in  the  habit  of  running  the  cars  of  each  over  all 
of  the  roads  so  connecting,  or  whether  the  road  has  no 
connections,  and  consequently,  in  the  transaction  of  its 
business,  its  cars  do  not  run  beyond  its  own  track52.  Upon 
the  principles  above  stated,  an  exemption  from  levy  does 
not  apply  to  property  not  used  for  railroad  purposes,  as 
railroad  grant  lands  after  the  title  has  become  perfect  in 
the  company53,  nor  to  personal  property  as  coal  stored  for 
future  use54. 

§165.     Sale  Under  Levy. 

The  same  rule  applies  to  a  sale  of  property  by  a  tax 
collector  under  his  warrant,  in  relation  to  the  amount  of 
property  sold,  as  to  a  judicial  sale.  The  collector  cannot 
sell  an  excessive  amount  of  property,  and  where  the  prop- 
erty seized  is  susceptible  of  separate  offerings,  it  must  be 
sold  separately55.  In  order  to  make  the  sale  effectual  and 
furnish  any  ground  of  action  against  the  collector,  the 
property  must  be  taken  from  the  possession  of  the  owner, 
or  taken  so  far  as  the  nature  of  the  property  will  permit.  A 
sale  of  growing  crops  would  be  good  because  they  cannot 
be  removed,  but  a  sale  of  goods  in  the  possession  of  the 
owner,  where  the  vendee  does  not  attempt  to  take  posses- 
sion, does  not  amount  to  a  conversion56. 

52.     Randall    v.    Ellwell,   52   N.  53.    Tucker     v.     Ferguson,     22 

Y.  521,  same  principle  in   Beard-  Wall.    527. 

sley   v.    Ontario    Bank,    31    Barb.  54.     Chicago,  etc.,  Ry.  v.  Ellson, 

619;  Boston,  etc.,  Ry.  v.  Gilmore,  113   Mich.   30. 

37  N.  H.  410;  Coe  v.  Ry.  Co.,  10  55.    Leaton      v.      Murphy,      78 

Ohio  St  372 ;  Dubuque  v.  Ry.  Co.,  Mich.  77 ;   Starr  v.   Shepard,  145 

39    la.    56;    State    Treasurer    v.  Mich.  362. 

Somerville,    etc.,    Ry.,    4    Dutch.  56.    Mills    v.    Van     Camp,    41 

(la)  21.  Mich.  645. 


CHAPTER  X. 
ACCOUNTING  WITH  COLLECTOR. 


§166.  Accounting  with  Collector. 

§167.  Accounting  between   School    District-. 

§168.  Accounting  with   County   Treasurer. 

§169.  Accounting  between  Townships. 

§170.  Accounting  between  Townships  and  County. 

§171.  Accounting  between    State  and   County. 

§172.  County  Treasurer  and  State  Taxes. 

§173.  County  Treasurer  and   Miscellaneous. 

§174.  Collector's  Return  of  Taxes. 

§175.  Warrant  of  County  Treasurer. 

§176.  Certificate  of  County  Clerk. 

§177.  Return  to  Auditor  Gcr.cral. 

§17s.  Taxes.    When  Sale  is  Set  Aside. 

§179.  Right  to  Pay  Delinquent  Taxes. 


§166.     Accounting  With  Collector. 

The  county  treasurer,  in  his  official  capacity,  may  main- 
tain an  action  against  the  township  treasurer  to  recover 
state  and  county  taxes  collected  by  him.  It  will  be  no 
defense  that  such  taxes  were  illegally  assessed.  He  receives 
them  in  payment  of  taxes,  and  as  money  belonging  to  the 
public.  Those  who  were  assessed  voluntarily  pay  it  in 
satisfaction  of  their  tax  dues  and  in  the  discharge  of  their 
duty  as  citizens,  and  the  treasurer  receives  it  .as  money  of 
the  public  which  it  is  his  official  duty  and  province  to  receive 
and  take  care  of  for  the  public  benefit.  It  is  not  the  col- 
lector's when  paid  and  received  and  does  not  become  liis 
afterwards.  The  equitable  ownership  of  the  money  and  the 
legal  responsibility  of  the  collector  are  the  same.  It  is 
paid  and  received  as  tax  money,  and  is  covered  by  his  duty 


5  166  THE  LAW  OF  TAXATION 


and  his  bond.     The  doctrine  rests  on  policy,  reason  and 
authority1. 

Statutory  Provisions. 

Act  No.  8  of  Public  Acts  of  1909  requires  the  county 
treasurer  to  bring  suit  against  a  collector  where  he  has 
collected  taxes  and  not  marked  them  paid  on  the  collect- 
ing roll. 

C.  L.  §3875,  requires  taxes  collected  to  be  paid  out 
for  the  following  purposes,  in  the  order  named,  viz, 
school  taxes,  general  township  taxes,  highway  taxes, 
and  taxes  for  special  funds. 

Upon  the  same  principle,  any  excess  of  the  roll  is  a 
public  fund  and  must  be  paid  over  to  the  township. 
Although  the  township  board  may  have  made  a  settlement 
with  the  collector  and  not  charged  him  with  such  excess, 
yet,  as  the  funds  do  not  belong  to  the  board,  but  to  the 
public,  such  action  would  not  stop  the  township  from  bring- 
ing an  action  on  the  bond  for  any  balance  found  due2.  Un- 
less the  statute  expressly  so  provides,  a  collector  cannot  sell 
property  under  his  warrant  for  his  fees,  nor  deduct  his 
fees  from  the  proceeds  of  property  sold3.  When  the  col- 
lector charges  certain  illegal  fees  for  making  a  levy,  the 
township  will  not  be  liable  therefor4.  A  bill  will  lie  by  a 
township  treasurer,  against  his  predecessor  in  office,  for  an 
accounting  of  the  moneys  and  funds  turned  over  to  him, 
and  to  cancel  a  receipt  given  by  fraud  or  mistake5. 

1.  Berrien  County  Treasurer  v.  refuses  to  disturb  a  finding  of  fact 
Bunberry,   45   Mich.   79.   85;   Ma-  by  a  jury,  as  to  a  settlement. 
son  v.  School  Dist.  34  Mich.  228  ;  3.     Fuller  v.   Grand   Rapids.  40 
King  v.  United   States.  99  U.   S.  Mich.  395. 

229;   Gwynne  v   Burnell.   7   Clark  4.     Godkin   v    Doyle   Twp..    143 

&   Finn,   572.  Mich.  236. 

2.  Boardman    Twp.    v.    Flagg,  5.     Beaton  v.  Inland  Twp..  149 
70  Mich.  372.    In  Monroe  Twp.  v.  Mich.    558. 

Whipple.   62   Mich.   560.  the  court 


235  ACCOUNTING    WITH    COLLECTOR          ^    1»'»7.    1 'Is 

$167.     Accounting  Between  School  Districts. 

On  the  formation  of  a  new  district,  an  apportionment  of 
valuation  by  the  school  inspectors,  without  notice,  is  void; 
and  a  bill  in  equity  will  lie  at  the  instance  of  the  old  district 
to  enjoin  the  collection  of  its  share  of  a  tax  to  build  a 
union  school  for  the  benefit  of  both  districts,  authorized 
by  the  electors  before  the  division  of  the  district*.  One 
district  may  file  a  bill  against  another  district  asking  for  an 
accounting  of  taxes  which  belonged  to  both  districts7.  At 
common  law,  the  township  was  not  liable  for  the  defalca- 
tion of  its  officers,  but  it  now  is  by  statute.  When  a  town- 
ship treasurer  embezzles  school  monies,  the  supervisor  will 
be  compelled  to  spread  the  amount  so  lost,  upon  the  gen- 
eral roll  of  the  township8. 

§168.     Accounting  With  County  Treasurer. 

The  county  treasurer  is  not  a  state  officer  in  such  sense 
as  to  make  his  defalcations  fall  upon  the  state.  The  county 
will  be  liable  therefor,  the  treasurer's  bond  being  only  cum- 
ulative security  to  the  state9.  Although,  as  in  the  case  <>f  a 
liquor  tax,  the  money  may  not  go  to,  or  belong  to  the 
county,  either  in  whole  or  in  part,  and  the  treasurer  acts 
only  as  the  agent  of  the  municipalities  in  such  collections, 
his  bond  covers  such  monies  so  received.  Money  received 
officially  from  any  source  whatsoever  is  apparently  within 
the  terms,  and  the  treasurer  is  required  to  account  not 
exclusively  to  the  supervisors  or  the  county,  but  to  any 
person  authorized  by  law  to  receive  from  him  whatever  he 


6.  School  Dist.  v.  School  Dist..          8.     Smith   v.    Jones,    136    Mich 
63   Mich.  :,1.  .132. 

7.  School  Dist.    v.    Dean,    17         0.     Attorney  General  v.  St.  Gair 
Mich.  273.  Supervisors.  30  Mich.  388. 


S  160  ,  THE  LAW  OF  TAXATION  230 

may  hold  officially  in  his  custody.     If  the  tax  is  provided 
for  before  the  bond  is  executed,  the  sureties  are  liable10. 

§169.     Accounting  Between  Townships. 

The  right  of  a  municipality  to  a  tax  becomes  vested  at 
the  time  the  tax  is  to  be  paid;  and  if  it  is  not  then  paid, 
the  subsequent  annexation  of  the  territory  to  some  other 
municipality  before  payment,  does  not  transfer  to  the  latter 
the  right  to  the  money11.  Where  the  amount  due  from  one 
township  to  another  is  liquidated,  mandamus  is  the  proper 
remedy  to  compel  its  payment.  Where  a  duty  exists  in  a 
township  to  pay  a  specific  and  ascertained  charge,  it  would 
be  unjust  to  both  parties,  debtor  and  creditor,  to  permit  or 
require  a  suit  at  law,  where  the  judgment  cannot  be  col- 
lected by  execution.  The  township  ought  not  to  be  put  to 
a  useless  expense  by  the  fault  of  its  officers,  and  the 
creditor  ought  not  to  be  put  to  delay,  or  a  double  pursuit12. 
If,  however,  the  amount  is  not  stated  and  liquidated, 
assumpsit  will  lie13;  but  the  account  may  be  referred  to  a 
referee,  in  mandamus  proceedings,  to  determine  the 
account14.  In  the  case  of  special  taxes,  as  for  drainage, 
there  is  no  liability  on  the  part  of  the  township  for  such 
taxes  in  its  treasurer's  hands.  Any  action  must  be  brought 
against  the  treasurer16.  On  a  decision  of  townships,  afte'r 
a  suit  commenced  against  the  old  township,  the  new  town- 

10.  Marquette  County  v.  Ward,  Cass   Co.   Board  v.   Porter  Twp., 
50   Mich.   174,   177.  18   Mich.    101;     Comins    Twp.    v. 

11.  Springwells  Twp.  v.  Wayne  Harrisville  Twp.,  45  Mich.  4,4.2. 
Treasurer,   58   Mich.   240,   involv-          13.     Cummings    Twp.    v.    Oge- 
ing  payment  of  liquor  tax ;  Stam-  maw  Co.,  93  Mich.  315. 

baugh  Twp.  v.  County  Treasurer,  14.     Haines  v.  Saginaw  Co.,  87 

153   Mich.   104.  Mich.    237. 

12.  Marathon  Twp.  v.  Oregon,  15.     Anderson  v.  Hill,  54  Mich. 
3  Mich.  372,  378 ;  Dayton  Twp.  v.  477 :  Dawson  v.  Aurelius  Twp.,  49 
Rounds,  27  Mich.  8? :  Anderson  v.  Mich.     470 ;     Camp    v.     Algansee 
La  Grange  Twp..    2    Mich.    18s.  Twp..   50  Mich.   4. 


ACCOUNTING  WITH  COLLECTOR  ?    K  ' ' 

ships  are  bound  by  the  judgment,  and  should  pro-rate  pay 
it.  The  uncollected  taxes,  when  paid  should  be  divided  in 
the  same  manner  as  other  cerdits18.  Where  a  township 
voted  certain  money  to  pave  a  certain  street,  and  this  street 
was  afterwards  included  in  a  new  village  corporation,  it 
was  competent  for  the  legislature  to  provide  that  this 
money  should  be  turned  over  to  the  village17. 

j-170.     Accounting  Between  Township  and  County. 

By  the  principles  of  the  common  law  the  township  in  its 
corporate  capacity  cannot  be  subjected  to  liability  to  the 
county  for  the  result  of  the  township  treasurer's  misdoings. 
The  general  relation  between  the  county  and  township  in 
respect  to  the  collection  of  county  taxes,  and  their  return 
to  the  county,  would  not  afford  any  basis  for  it.  In  no 
exact  sense  can  it  be  said  that  the  township  is  agent  for  the 
county,  and  no  common  law  obligation  arises  against  the 
township  to  guarantee  the  integrity  and  responsibility  of 
the  treasurer.  For  simplicity  and  convenience  of  admin- 
istration the  law  makes  use  of  the  township  officer  to  gather 
and  pay  over  the  county  tax.  But  when  it  does  so  and 
goes  no  further,  the  implication  is  that  the  local  officer  is 
for  such  function  the  official  agent  of  the  county,  and  not 
of  the  township,  and  that  the  county  must  look  elsewhere 
than  to  the  township  for  indemnity  in  case  of  misconduct. 
The  county  may  bring  suit  direct  upon  the  treasurer's  bond, 
or  may  charge  the  loss  to  the  township  and  if  necessary 
compel  the  spreading  of  this  tax  by  mandamus  the  succeed- 
ing year.  The  action  of  assumpsit  will  not  lie  against  the 
township18.  Such  a  claim  may  be  enforced  by  the  county 

16.  Gladwin   Twp.   v.    Bourrett       Mich.  524. 

Twp..   131   Mich.  353.  18.     Hart  Twp.   v.  Ocoana   Co., 

17.  Page  v.  Gros.  Pt.  Twp.,  134      44  Mich.  417. 


§  170  THE  LAW  OF  TAXATION 

at  any  time,  since  there  is  no  outlawry  between  state  and 
county,  and  county  and  township19. 

Money  paid  officially  by  the  auditor  general  into  the 
hands  of  the  county  treasurer  is  binding  upon  the  county. 
Where  the  county  treasurer  defaults,  the  county  is  liable  to 
the  townships  for  their  proportionate  share  of  such  money, 
since  the  county  will  be  regarded  as  having  received  it  as 
against  all  other  parties  than  the  treasurer  himself.  If  the 
county  compromises  with  such  defaulting  treasurer,  it  does 
not,  in  so  doing,  act  as  the  agent  of  the  township;  and 
mandamus  will  lie  to  compel  payment  to  the  township  of 
its  monies  so  lost.  Such  an  action  may  arise  where  a 
township  is  detached  from  one  county  and  set  off  to  another 
county,  in  which  case  it  would  stand  no  portion  of  the 
county  tax  to  make  good  the  loss20.  The  county  treasurer, 
however,  in  the  collection  of  special  taxes,  such  as  liquor 
tax,  acts  as  the  agent  of  the  several  municipalities ;  and  the 
county  will  not  be  liable  to  such  municipalities  for  the 
default  of  its  treasurer,  nor  can  such  municipalities  set  off, 
or  retain  any  loss  so  occasioned,  out  of  the  valid  county 
taxes.  The  county  does  not  guarantee  the  integrity  of  its 
officers21.  A  township  is  liable  to  a  county  for  returned 
township  drain  taxes  for  which  it  received  credit  from  the 
county  on  their  return,  which  were  later  charged  back  to 
the  county  by  the  auditor  general  2.  When  the  account 
between  the  county  and  township  has  not  been  stated,  and 
there  is  a  dispute  as  to  the  amount  due,  the  action  of 

19.     Oceana  Co.  v.  Hart  Twp.,  years  old  were  ordered  paid. 

48  Mich.  319.     In  Shiawassee  Co.  20.     Roscommon   Twp.   v.   Mid- 

v.   Hazelton   Twp.,   82  Mich.  440,  land  Co.,  49  Mich.  454. 

on  account  of  $8.97,  30  years  old,  21.     Marquette  Co.  v.  Dillon,  4* 

was  charged  back  to  the  township  Mich.  244. 

with  interest,  amounting  to  $96.49.  22.     Shiawassee  Co.  v.  Hazelton 

In  Auditor  General  v.  Shiawassee  Twp.,  82  Mich.  440. 
Co.,   74   Mich.   536,  550,   claims   20 


889  ACCOUNTING  WITH  COLLECTOR  §  171 

assumpsit  can  be  maintained  against  the  county;  the  rights 
of  the  parties  can  be  more  properly  and  justly  ascertained 
than  in  mandamus  proceedings23.  Inasmuch  as  only  the 
local  municipal  officers  can  collect  a  tax  on  personal  prop- 
erty, and  such  taxes  at  once  become  a  debt  to  the  township 
against  the  person  to  whom  they  are  assessed,  the  county 
treasurers,  by  a  practical  construction  of  the  statute  extend- 
ing over  thirty  years,  may  withhold  the  state  and  county 
taxes  assessed  upon  personal  property  from  any  township 
monies  coming  into  his  hands-4.  Where  a  township  board 
draws  warrants  on  the  county  treasurer  to  be  paid  out  of 
monies  belonging  to  the  township,  such  orders  will  be  valid 
in  a  settlement  between  the  township  and  county  in  so  far 
as  they  have  been  paid  without  being  countermanded. 
After  countermand,  they  cannot  be  charged  against  the 
township26. 

§171.     Accounting  Between  State  and  County. 

The  action  of  the  auditor  general  in  stating  an  account 
between  the  county  and  state,  cannot  be  examined  upon 
certiorari26.  Under  the  statute,  counties  may  implead  each 
other  at  law  or  in  equity  on  any  matter  of  variance,  and 
therefore  an  action  will  lie  by  one  county  against  another*7. 


23.  Cummings    Twp.    v.    Ogc-  unreturned    in    the   hands   of    the 
maw  Co.,  93  Mich.  315;  Muskegon  city   treasurer.     This  case  is  ex- 
City  v.  Muskegon  Co.,  123  Mich,  plained   in   123   Mich.   274,   supra, 
272,  being  assumpsit.  the     county     treasurer    admitting 

24.  Muskegon   City  v.   Muske-  that  he  was  retaining  city  money, 
gon  Co.,  123  Mich.    272,    274.     In  25.     Cummings    Twp.    v.    Oge- 
Muskegon  City  v.  Soderberg,  111  maw  Co.,  100  Mich.  561. 

Mich.  559.  it  is  held  that  the  coun-  26.      Midland    Co .   v.    Auditor 

ty  treasurer  could  not  retain  city  General,  27  Mich.  165. 

money    to    offset    such    state    and  27.     H.    S.    5463,    C.    L.    12465; 

county    taxes    on    personal    prop-  Ontonogon  Co.  v.  Gogebic  Co.,  74 

erty    while    his    warrant    for    the  Mich.    721 ;    Auditor    General    v. 

collection  of  such  taxes  was  still  Bay  C.,  106  Mich.  662,  669. 


jj   l?'l  THE  LAW  OF  TAXATION 


Where  one  county  has  paid  money  for  the  use  of  another, 
payment  cannot  be  enforced  by  mandamus,  but  must  be  by 
suit28.  Claims  of  the  state  against  a  county  may  be  en- 
forced by  mandamus;  and  either  mistake  or  fraud  may  be 
shown  in  the  auditor  general's  account.  The  court  will 
grant  relief  whether  the  mistake  be  one  of  law  or  fact28. 
The  auditor  general  may  keep  all  township  monies  received 
by  him  and  apply  them  on  the  indebtedness  of  the  county30. 
The  county  is  liable  to  the  state  for  interest  on  the  annual 
balance  found  due,  and  for  any  default  of  the  county  treas- 
urer in  paying  over  state  taxes31,  but  not  for  the  loss 
sustained  by  selling  lands  for  less  than  the  taxes  due  under 
the  law  of  18  6932.  Moreover,  where  the  county  has  once 
paid  an  illegal  claim  made  by  the  state,  it  cannot  there- 
after set  up  such  illegal  payment  as  a  set-off  to  a  valid 
claim33.  The  four  per  cent  collection  fee  goes  either  to 
the  county  treasury  or  the  state  treasury,  as  the  county 
treasurer  or  auditor  general  collects  or  receives  the  taxes34. 
The  loss  caused  by  refunding  money  paid  for  void  tax 
sales,  falls  upon  the  county  and  state,  the  county  standing 


28.  Bay    Co.    v.    Arenac    Co.,  Co.,  76  Mich.  295;   Auditor  Gen- 
ii 1   Mich.   105,  eral    v.    Shiawasee    Co.,    74    Mich. 

29.  Auditor    General    v.   Sag-  536;  Auditor  General  v.  Saginaw 
inaw  Co.,  62  Mich.  579,  592 ;  Audi-  Co.,  62  Mich.  579 ;  Auditor  Gen- 
tor    General    v.    Ottawa    Co.,    76  eral  v.  Monroe  Co.,  36  Mich.  70; 
Mich.  295.  Auditor  General  v.   Midland  Co., 

30.  Ottawa     Co.     v.     Auditor  84  Mich.  121. 

General,  69  Mich.  1.  33 .      See     suits     against     state. 

31.  Auditor  General  v.  Ottawa  Auditor   General   v.   Bay   County, 
Co.,  76  Mich.  295;  Auditor  Gen-  106  Mich.  662;  Ambler  v.  Auditor 
eral   v.    Bay   Co.,    106    Mich.    662,  General,    38    Mich.,    746    Auditor 
669 ;  Auditor  General  v.  Shiawas-  General  v.  Van  Tassell,  73  Mich, 
see  Co.,  74  Mich.  536,  554;  Shia-  29;    Auditor    General    v.    Grand 
wassee  Co.  v.  Hazelton  Twp.,  82  Traverse  Co.,  73  Mich.  182. 
Mich.    440;    Attorney    General    v.  34.      Auditor    General    v.    Bay 
St.  Clair  Co.,  30  Mich.  388.  Co.,  106  Mich.  662,  671. 

32.  Auditor  General  v.  Ottawa 


ACCOUNTING   WITH  COLLECTOR 

the  loss  of  all  but  the  state  tax,  which  is  borne  by  the  state*8. 
The  state  may  charge  the  county  with  the  cost  of  the  state 
militia  used  to  preserve  peace  in  a  county,  and  compel  it* 
payment30,  with  the  rejected  taxes37  and  with  the  cost  of 
collecting  delinquent  taxes88.  Money  paid  by  a  city  treas- 
urer to  the  county  treasurer  by  mistake,  in  reality  belonging 
to  the  city,  may  be  compelled  by  mandamus  to  be  refunded. 
Such  a  claim  need  not  be  presented  to  the  board  of  super- 
visors39. So  a  township  detached  from  a  county  may 
compel  the  payment  to  it  of  such  of  its  monies  as  is  held  by 
the  county  treasurer40.  The  decree  on  the  tax  hearing, 
fixing  the  charges  on  delinquent  tax  lands,  is  conclusive 
between  the  state  and  the  county.  If  the  decree  omits 
certain  statutory  charges,  the  loss  occasioned  by  such 
omission  cannot  be  charged  back  to  the  county41.  The 
expense  of  advertising  lands,  when  the  tax  was  paid  before 
the  advertising  was  done,  is  chargeable  to  the  county  where 
the  county  treasurer  neglected  to  make  a  report  of  such 
payment.  It  is  the  policy  of  the  law  to  make  losses, 
occurring  through  defective  tax  proceedings,  chargeable  to 
the  state,  county  or  municipality,  through  the  default  of 
whose  officers  the  loss  occurred42. 

§172.     County  Treasurer. 

In  so  far  as  the  handling  of  state  taxes  is  concerned,  the 
treasurer  acts  for  the  state  and  for  no  other  body.     He 

35.  Auditor    General     v.     Bay          39.      Webster    v.    Wheeler,    119 
Co.,   106   Mich.  662,  675;   Hough-       Mich.   601. 

ton  Co.  v.  Auditor  General,  41  40.  Roscommon  Twp.  v.  Mid- 
Mich.  28.  land  Co..  49  Mich.  454. 

36.  Auditor    General  v.     Bay          41.      Warren    v.    Auditor    Gen- 
Co.,  106  Mich.  662,  678.  cral,  131   Mich.  263. 

37.  Auditor   General  v.    Mon-          42.    Oppenborn  v.  Auditor  Gen- 
roe  Co.,  36  Mich.  70.  cral,  140  Mich.  92,  construing  559, 

38.  Auditor    General  v.    Bolt,      91,  95,  of  the  tax  law. 
124  Mich.  185, 


§  172  THE  LAW  OF  TAXATION 

cannot  retain  the  state  taxes  to  satisfy  or  off-set  a  former 
illegal  demand  paid  by  the  county  to  the  state.  The  super- 
visors have  no  more  control  over  the  money  in  his  hands 
than  if  it  were  in  the  state  treasury.  It  is  a  district  trust 
fund,  and  can  no  more  be  stopped  there,  and  devoted  to 
county  purposes,  than  it  could  be  attached  or  garnisheed 
for  the  county,  or  for  any  one  to  whom  the  county  is  in- 
debted. There  is  no  point  of  view  in  which  this  money 
can  be  allowed  to  be  impounded  or  retained  in  his  hands 
which  does  not  involve  every  element  of  a  suit  against  the 
state. 

It  would  be  a  very  dangerous  doctrine  to  allow  the 
revenues  of  the  public  to  be  tampered  with  while  in  process 
of  realization.  If  such  considerations  can  prevail  in  any 
case,  they  must  prevail  in  all  cases  where  the  treasurer 
should  see  fit  to  set  them  up.  A  defense  which  can  be  law- 
fully made,  cannot  be  disposed  of  until  the  final  hearing, 
and  the  final  hearing  must  await  the  determination  of 
issues  of  fact,  and  the  lapse  of  time  to  dispose  of  them  in 
the  usual  course  of  trial.  The  state  would  soon  become 
bankrupt  if  any  county  officer  can,  at  his  will,  raise 
questions  concerning  the  balance  of  accounts,  and  keep  the 
money  until  they  are  settled43.  The  treasurer  may  resist 
an  illegal  claim,  in  any  action  the  state  may  bring ;  but  when 
once  such  claim  is  paid,  he  cannot  afterwards  set  it  up  as 
an  off-set  against  a  valid  claim44.  While  the  county  treas- 
urer may  be  liable  on  his  bond  for  not  making  a  seasonable 
return  of  delinquent  taxes  to  the  auditor  general,  it  must 

43.     See     Suits     against     state.  182. 

§407,   post.      Auditor    General    v.  44.     Auditor    General    v.    Shia- 
Van   Tassell,    73    Mich.    29,    33;  wassee  Co.,  74  Mich.  537;  Audi- 
Auditor  General  v.   Bay  Co.,   106  tor  General  v.  Bay  Co.,  106  Mich. 
Mich.   662,   665;    Auditor   General  662,  666. 
v.  Grand  Traverse  Co.,  73  Mich. 


ACCOUNTING   WITH    C«»I. I. KCTOR  i    1  <  •"• 

appear  affirmatively  that  the  returns  were  made  by  the 
several  collectors,  and  that  the  time  of  collecting-  taxes  had 
not  been  extended45. 

£173.     County  Treasurer.     Miscellaneous. 

TIic  county  treasurer  is  not  an  agent  of  the  state  in  con- 
ducting tax  sales  in  the  sense  that  the  state  is  liable  for  his 
shortage.  The  county  is  liable  therefor  since  R.  S.  184648. 
As  a  public  officer  it  is  his  duty  to  collect  the  public  monies 
and  he  may  bring  suit  upon  the  bond  of  his  predecessor  for 
money  not  paid  over47.  His  failure  to  file  his  bond  in  time 
does  not  avoid  tax  sales  made  by  him48.  Mandamus  will 
lie  to  compel  him  to  advertise  and  sell  delinquent  tax  lands. 
His  duty  is  ministerial49.  For  the  same  reason,  he  cannot 
pass  upon  the  legality  of  the  return  of  the  taxes50.  Neither 
can  he  refuse  to  make  payments  ordered  by  the  board  of 
supervisors51.  Money  coming  into  his  hands  remains 
public  money;  and  interest  on  such  funds  belong  to  the 
county52.  Under  the  law  of  1893,  the  county  treasurer  was 
required  to  'furnish  certificates  free  to  be  attached  to  deeds 
to  enable  them  to  be  recorded53.  His  certificate  that  there 
are  no  taxes  assessed  against  property,  or  that  they  are 
paid,  is  equivalent  to  payment  in  so  far  as  cancelling  a 
tax  sale54,  but  such  certificate  must  be  given  while  he  has 
power  to  receive  the  money  for  the  tax  in  question.  He 


45.  Houghton  Co.  v.   Rees,  34  50.     Jackson   v.   Weinhold,    11? 
Mich.  481,  487.  Mich.   305. 

46.  Attorney    General    v.    St.  51.     Friedman  v.  Horning,  128 
dair  Co.,  30  Mich.  388.  Mich.  606. 

47.  Berrien   County  Treasurer  52.      Board    of    Supervisors   of 
v.  Bunhury,  47  Mich.  579.  Kent  Co.  v.  Verkerke,  128  Mich. 

49.     Stockle  v.  Silsbee,  41  Mich.  202. 

515.  53.     Backus   v.    County   Treas- 

49.     Hudson   Village   v.    Whit-  urcr.  90  Mich.  218. 

ney,  53  Mich.  158.  54.     Hough  v.  Auditor  General, 


§  174  THE  LAW  OF  TAXATION  244 

has  no  power  to  give  such  a  certificate  as  to  taxes  for  which 
the  land  has  been  sold,  though  such  sale  be  set  aside55. 

§174.     Collector's  Return  of  Taxes. 

The  collecting  officer  is  required  to  make  a  return,  on 
oath,  as  to  his  uncollected  taxes,  and  file  this  return  with 
the  county  treasurer56. 

Statutory  Provisions. 

C.  L.  §3878  provides:  "If  the  township  treasurer 
or  other  collecting  officer  shall  be  unable  to  collect  any 
of  the  taxes  on  his  roll,  assessed  on  real  property,  he 
shall  make  a  statement  of  the  same  with  a  full  and 
perfect  description  of  such  property,  as  assessed  upon 
said  roll,  with  the  several  taxes  assessed  upon  each 
parcel  thereof,  which  statement  shall  be  verified  by  the 
affidavit  of  such  treasurer  or  collector  that  such  taxes 
remain  unpaid,  and  that  he  has  not,  upon  diligent  in- 
quiry, been  able  to  discover  any  goods  or  chattels  liable 
to  pay  such  sums  whereupon  he  could  levy  the  same. 
The  said  treasurer  or  collector  shall  also  make  a  state- 
ment showing  the  taxes  upon  personal  property 
remaining  unpaid,  and  the  names  of  the  persons 
against  whom  assessed,  and  the  amount  against  each; 
*  *  *."  This  section  further  requires  the  treasurer 
to  set  'forth,  under  oath,  the  moneys  collected  by  him 
on  account  of  taxes,  and  the  sums  unpaid  as  above 

116  Mich.  663;  Young  v.  Auditor  113  Mich.  657;  Bloutin  v.  Griffin, 

General,  118  Mich.  550;  Kneeland  133   Mich.  647;   Bullock  v.   Audi- 

v.   Hyman,  118  Mich.  156;   Hotf-  tor     General,      142      Mich.      122; 

man     v.     Auditor     General,     136  Welever  v.  Auditor  General,   143 

Mich.  689.  Mich.   311. 

55.     Shulbe  v.  Auditor  General,  56.     Stockle     v.      Silsbee,     41 

131    Mich.    676;    Gray  v.   Detroit,  Mich.  615. 


ACCOUNTING    \MT1I    inl.LECTOR  $    \  ',  \ 

required  to  be  specified;  that  he  has  not,  on  diligent 
inquiry,  been  able  to  discover  any  goods  or  chattels 
belonging  to  the  party  liable  whereon  to  levy.  At 
this  time,  and  no  other,  the  county  treasurer  may  re- 
ject any  tax  upon  lahd  which  shall  have  been  twice 
assessed,  or  upon  any  parcel  so  erroneously  or 
defectively  described  as  not  to  be  correctly  and  easily 
ascertained. 

C.   L.    §3879   provides   that   the   settlement   of   the 
county  treasurer  with  the  township  treasurer  shall  dis- 
charge the  treasurer  and  his  sureties  from  their  bond 
and  obligation,  unless  such  return  is  incorrect,  when 
they   shall   be   liable   on   such   bond   for  all   damages 
occasioned   by  an   incorrect   return.      It    further   pro- 
vides :    "The  county  treasurer  shall  give  the  township 
or   city   treasurer   a  statement  of   all   personal   taxes 
which  remain  uncollected,  taken  from  the  return  of  the 
latter,  with  a  warrant  authorizing  him  or  his  successor 
to  collect  them  according  to  law,  and  thereafter  such 
treasurer  or  his  successor  shall  have  the  same  power 
to  collect  such  taxes  as  under  the  original  warrant." 
The  fact  that  this  original  return  was  sent  to  the  auditor 
general  instead  of  being  retained  in  the  treasurer's  office 
will  not  invalidate  a  tax  title57.     The  oath  may  be  admin- 
istered by  the  deputy  county  treasurer58.     The  return  of  a 
de  facto  collector  will  not  make  such  return  illegal,  although 
he  was  not,  in  fact,  qualified  to  hold  the  office59.     If  the 
collector's  return  is  in  proper  form  it  will  he  presumed  that 

57.     Stockle     v.     Silsbee.     41  thereon. 

Mich.     615.       In     Seymour     v.  58.     Malonny     v.     Mahar,     1 

Peters,  67   Mich.   415,  it  is   held  Mich.   26. 

that  a  failure  to  verify  the   re-  59.     Auditor  General  v.  Long- 

turn  will  avoid  a  tax  title  based  year.  110  Mich.  223. 


£   174  THE  LAW  OF  TAXATION  246 

he  made  a  personal  demand  for  the  taxes60 ;  but  there  must 
be  a  return  made61,  and  it  must  show  that  he  found  no 
property  on  which  to  levy62.  Under  the  old  tax  proceed- 
ings, a  premature  return  of  delinquent  taxes  rendered  a 
later  tax  sale  void.  The  owner  had  the  right  to  make  the 
payment  of  his  taxes  to  the  township  treasurer  at  any  time 
before  the  latter  was  obliged  to  make  his  return,  without 
being  subject  to  additional  charges63.  But  where  the 
warrant  was  extended,  the  return  could  be  made  before  the 
extension  expired,  since  the  extension  was  for  the  benefit 
of  the  collector  and  the  tax  payer  would  not  be  injured 
thereby64.  Under  the  chancery  proceedings,  the  failure  of 
the  collector  to  make  a  return  on  oath  of  the  moneys 
collected  will  not  vitiate  a  return  of  land  for  delinquent 
taxes.  This  statement  of  amount  collected  is  for  the  pur- 
pose of  accounting  only66,  but  the  collector  could  not  in- 
stitute an  action  for  the  tax  after  his  warrant  had  expired 
without  such  return  and  a  new  warrant  from  the  county 
treasurer66.  Since  the  change  in  the  tax  laws  whereby  a 
tax  lien  is  foreclosed  in  chancery,  the  courts,  so  far  as 

60.  Dickison  v.   Reynolds,  48  65.     Tweed      v.       Metcalf,      4 
Mich.  159.  Mich.   579;  Hood  v.  Judkins,  61 

61.  Newkirk     v.     Fisher,     72  Mich.  575;  Boyce  v.  Stevens,  86 
Mich.  15.    In  Upton  v.  Kennedy,  Mich.    549.      This    case    is    dis- 
36   Mich.   215,  an   unsigned,  un-  tinguished    from    78    Mich.    235, 
verified  return,  is   held   to  have  below,   in  that  the   return   here, 
no  legal  value.  though    defective,    did    state    an 

62.  Tompkins  v.  Johnson,  75  inability     to     collect     the     tax, 
Mich.  181.  which    does   not   appear   in    the 

63.  Bailey    v.     Haywood,    70  case  referred  to. 

Mich.  188;  Weir  v.  Kitchens,  52  66.  Port  Huron  Twp.  v. 
Miss.  74;  Ronkendorf  v.  Taylor,  Potts,  78  Mich.  435;  C.  L.  §3879; 
4  Peters  349;  Hickman  v.  Northwestern  Lumber  Co.  v. 
Kempner,  35  Ark.  505;  Flint  v.  Scott,  123  Mich.  357,  358;  Ban- 
Sawyer,  30  Me.  226.  gor  Twp.  v.  Smith  Transporta- 

64.  Drennan  v.   Meierlein,  49  tion    Co.,    106    Mich.    223;    Mus- 
Mich.  272;   Shefferly  v.  Auditor  kegon    v.    Martin    Lumber    Co., 
General,   120  Mich.  454.  86   Mich.   625. 


'-'  \'i  ACCOUNTING  WITH  COLLECTOR  §  175 

irregularities  go,  will  consider  only  the  equities  of  the  case 
and  enforce  a  payment  of  the  tax  when  the  collector  him- 
self could  not  have  done  so,  or  when  the  return  would  not 
have  supported  a  sale  under  the  old  law97,  as  a  premature 
return08.  If  the  collector  falsely  returns  "nulla  bona,"  a 
lien  holder  upon  the  property  who  is  thereby  compelled  to 
pay  the  tax  to  save  his  lien  has  a  common  law  right  of 
action  against  the  collector.  The  principle  involved  is  that 
a  public  officer  having  ministerial  duties  to  perform  in 
which  a  private  individual  has  a  special  and  direct  interest, 
is  liable  to  such  person  at  common  law,  for  such  injury  as 
may  result  from  a  failure  to  perform  his  duty69.  The 
county  treasurer  cannot  refuse  to  receive  a  collector's  return 
of  delinquent  taxes  because  of  alleged  irregularities  therein. 
The  treasurer  cannot  pass  upon  the  validity  of  taxes 
assessed70. 

§175.     Warrant  of  County  Treasurer. 

The  county  treasurer  cannot  issue  his  warrant  for  un- 
paid personal  taxes  until  the  local  treasurer  has  made  his 
return  of  such  taxes;  and  if  he  prematurely  issues  his 
warrant  it  will  be  void71.  While  the  seizure  of  property 
under  a  warrant  not  based  upon  the  verified  return  of  the 
local  treasurer  would  be  sufficient  irregularity  to  permit  the 

67.  Auditor  General  v.  Spar-  out,    10    Peters    80;    Brown    v. 
row,     116     Mich.     574;     Auditor  Lester,    21    Miss.    392;    Auditor 
Genera]      v.      Hutchinson,      114  General     v.      Hutchinson,      113 
Mich.  245.     In  Conley  v.  McMil-  Mich.   245. 

Ian,  120   Mich.   694,  no   demand  70.     Jackson    City    v.    County 

for  the  tax  was  made,  and  the  Treasurer,  117  Mich.  305. 

return  was  late.  71.     C.  L.  §3S79 :  sec.  174.  note 

68.  Conley  v.   McMillan,   120  supra.     Bangor   Twp.    v.    Smith 
Mich.   694.  Transportation    Co.,     106    Mich. 

69.  Raynesford  v.   Phelps,  43  223;  Port  Huron  Twp.  v.  Potts. 
Mich.  343;  Amy  v.  Supervisors,  78  Mich.  435:  Muskc(?on  v.  Mar- 
11  Wall.  136;  Tracey  v.  Swarth-  tin   Lumber  Co.,  86  Mich.  625. 


§§  176,  177  THE  LAW  OF  TAXATION  248 

recovery  back  of  the  tax  in  an  action  at  law.  it  will  not 
support  replevin72.  Such  warrant,  if  fair  upon  its  face, 
will  protect  the  officer  executing  it73. 

§176.     Certificate  of  County  Clerk. 

The  county  clerk  does  not  certify  the  collector's  return 
to  the  county  treasurer.  His  duty  applies  only  when  the 
time  for  collecting  taxes  is  extended,  and  to  certifying  to 
the  accuracy  of  the  transcript  sent  by  the  county  treasurer 
to  the  auditor  general74. 

§177.     Return  to  Auditor  General. 

It  is  the  duty  of  the  county  treasurer  to  make  his  return 
to  the  auditor  general  not  later  than  the  month  of  May; 
and  if  he  neglects  his  duty  in  this  respect  he  will  be  liable 
on  his  bond75. 

Statutory  Provision. 

C.  L.  §3880  provides:  "When  any  county  treas- 
urer shall  receive  from  a  township  treasurer  a  state- 
ment of  unpaid  taxes,  together  with  a  list  of  the  lands 
on  which  the  same  are  delinquent,  verified  according 
to  law,  such  county  treasurer  shall  enter  the  same  at 
length  on  the  books  in  his  office,  provided  for  that 
purpose,  and  he  shall  make  a  transcript  of  all  the 
descriptions  of  land  returned  as  delinquent  for  un- 
paid taxes,  except  such  as  may  have  been  rejected  by 

72.  Northwestern         Lumber  required  to  make  this  transcript 
Co.  v.  Scott,  12.3  Mich.  357.  nor  was  one  then  required  as  a 

73.  Wood      v.      Thomas,      38  basis    for    further    proceedings. 
Mich.  686.  Auditor    General    v.    Keweenaw 

74.  C.     L.     §3880;     Hunt     v.  Ass'n.,  107  Mich.  405. 
Chapin,  42  Mich.  24.    Under  the  75.     Houghton   Countv  v.  Roes, 
law   of   1891,   the   clerk   was   not  34   Mich.  481. 


Ml!'  ACCor.N  I  1\<;   U  1111    (  <>ll. hi  TOR  .^    1  I  I 

him,    with    the    several    taxes    assessed    upon    such 
descriptions    respectively,    which    transcript    shall    be 
compared  by  the  county  clerk  with  the  statement  of 
the  county  treasurer,  and  if  the  county  clerk  finds  it 
to  be  a  true  transcript  thereof,  he  shall  add  to  it  a 
certificate  that  he  has,  upon  careful  examination,  found 
it  correct."     This  section  further  provides  that  such 
transcript  shall  be  forwarded  to  the  auditor  general 
by  the  1st  of  May  next  after  such  return  is  made,  and 
that  the  auditor  general  may,  in  his  judgment,  extend 
the  time  in  which  this  return  may  be  made  to  him. 
Where  the  treasurer  made  his  returns  from  the  original 
lists,  and  did  not  keep  a  separate  record  of  returned  lands 
as  required  by  statute,  the  tax  payer  is  not  injured  thereby 
and  cannot  complain78.     The  return  is  not  vitiated  because 
the  county  treasurer  forwarded  the  original  returns  instead 
of  transcripts77.   Where  the  auditor  general  has  erroneously 
issued  a  statement  that  taxes  are  paid  upon  lands  returned 
delinquent  to  him,  he  is  justified  in  refusing  to  issue  a  tax 
deed  thereon78.     The  auditor  general  cannot  be  compelled 
to  receive  returns  of  delinquent  taxes  after  the  time  fixed 
by  law   therefor.     Under   our  present   system   it   is  con- 
templated that  there  shall  always  be  an  opportunity  to  pay 
delinquent  taxes  at  the  auditor  general's  office:  and  \vlu ••' 
parties  own  lands  in  different  counties,  the  convenience  in 
doing  this  is  often  of  considerable  importance.     It  would 
also  be  very  likely  to  lead  to  mistakes  and  to  losses  of  land 
in  consequence,  if  parties  who  pay  at  the  auditor's  office, 
and  who  apply  at  a  time  all  unpaid  taxes  should  be  iound 
there,  and  pay  all  that  the  records  there  show,  were  liable 

76.  Auditor    General    v.   Ke-      Mich.   615. 

weenaw  Ass'n.,  107  Mich.  405.  78.     Hand  v.  Auditor  General. 

77.  Stockle     v.      Silshee.      41       112    Mich.   S97. 


$  177  THE  LAW  OF  TAXATION  250 

afterwards  to  have  delinquencies  reported  against  them70.  In 
any  event,  the  auditor  general,  in  the  absence  of  statutory 
authority,  could  not  receive  delayed  returns  at  a  time  when 
it  was  too  late  to  offer  them  for  sak  at  their  proper  time 
and  year  they  should  have  been  offered  for  sale.  A  power 
to  receive  delinquent  taxes  in  the  next  or  succeeding  years 
after  they  should  have  been  returned  implies  a  power  in 
the  auditor  general  to  adjourn  the  tax  sales,  which  he 
cannot  do.  While  the  auditor  general  might,  in  his  dis- 
cretion, receive  any  returns  which  were  offered  in  time 
for  the  regular  sales  of  the  year,  he  has  no  more  power 
indirectly  to  postpone  a  sale  to  a  subsequent  year,  by  post- 
poning the  reception  of  the  returns,  than  he  can  do  by 
more  direct  action.  Not  only  would  the  interests  of  the 
public  be  prejudiced  by  such  action,  but  the  interests  of 
owners  of  lands  are  liable  to  be  seriously  prejudiced  also. 
They  have  a  right  to  suppose  that  the  regular  tax  proceed- 
ings are  taken,  and  to  deal  with  the  lands  on  that  suppo- 
sition ;  and  a  purchaser  of  lands  who  buys  them,  supposing 
they  are  free  from  taxes,  except  such  as  the  regular  returns 
would  show,  would  be  greatly  wronged  if  they  might  sub- 
sequently be  sold  for  a  tax  long  since  levied,  but  appearing 
when  he  bought  only  upon  an  unaccepted  return  which  the 
auditor  general  then  retained,  subject  to  his  future  dis- 
cretion. It  is  a  familiar  principle  that  those  provisions  of 
tax  laws,  a  departure  from  which  would  be  prejudicial  to 
the  owners  of  property,  cannot  be  held  merely  directory. 
There  are  some  cases  in  which  lands  are,  by  statute,  ex- 
pressly permitted  to  be  sold  in  a  year  subsequent  to  the 
time  when  they  should  regularly  have  been.  One  of  these 

79.     Houghton        County       v.      Auditor    General,   36   Mich.   271, 

272. 


•j:.l  M  cm  MINI,  WITH  mi.  i.  ix  TOR  : 

is,  when  the  lands  were  not  sold  at  the  proper  time,  by 
reason  of  error  in  advertising  or  other  cause,  not  affecting 
the  legality  of  the  assessment,  or  require  the  rejection  of 
the  taxes  thereon.  C.  L.  1871,  §1044.  But  this  con- 
templates a  case  where  the  lands  are  advertised  for  sale, 
and  then  by  reason  of  error  in  the  advertisement  or  other 
cause,  cannot  be  or  are  not  sold.  The  returns  in  such  case 
are  in  any  event  on  file  with  the  auditor  general.  Another 
case  is  where  the  taxes  are  rejected  for  some  informality, 
irregularity  or  defect  in  description,  and  reassessed80. 

£178.     Taxes.     When  Sale  is  Set  Aside. 

The  auditor  general  is  authorized,  when  lands  were  bid 
in  to  the  state  in  contravention  of  any  law,  to  set  the  sale 
aside.  In  such  event,  or  where  the  court  may  have  set  the 
sale  aside,  he  may  proceed  to  collect  such  taxes  as  in  the 
case  of  returned  taxes.  In  these  cases,  if  a  land  owner 
wishes  to  redeem,  the  taxes  are  payable  to  the  auditor  gen- 
eral and  not  to  the  county  treasurer81. 

Statutory  Provisions. 

Act  169  of  Public  Acts  of  1899.  amends  §§138,  139 
of  the  Tax   Law.      §138  provides,   "All  lands   which 


80.  Houghton       County       v.  not    enlarge    the    power    of    the 
Auditor  General,  41  Mich.  28,  30.  auditor       general      as      to      tin- 

81.  Schulte   v.    Auditor    Gen-  grounds    upon    which    he    could 
eral,     131     Mich.     676;     Auditor  cancel   sales.     This   case   is  ap- 
General   v.   O'Connor,  83    Mich.  proved    in    Adkin    v.    Pillcn,    136 
464.       In     Auditor     General     v.  Mich.  682,  684.     The  above  pro- 
Sherman ,    136     Mich.    157,    the  visions    are    held    to    furnish    a 
court  holds  that  a  tax  purchaser  valid    procedure    for    foreclosing 
is  chargeable   with  notice  of   the  tax  liens  which  accrued  prior  to 
lien  of  the  state  for  a  tax  where  1891,  though  no  method  of  fore- 
the  decree  of  sale  had  been  can-  closure     was     before    provided; 
celed    under    the    provisions    of  Auditor    General    v.    Carpenter, 
§139,   and   that  this   section   did  13*  Mich.  r>r,9,  672.    In  Schaaf  Y. 


§  1?'8  THE  LAW  OF  TAXATION  252 

have  been  returned  to  the  auditor  general  as  delinquent 
*  *  *  and  upon  which  the  taxes  are  now  or  shall 
hereafter  remain  unpaid  and  which  have  not  been  sold 
for  such  taxes,  and  all  lands  so  returned  which  have 
been  heretofore  sold  for  such  delinquent  taxes,  and 
upon  which  the  sale  or  sales  so  made  shall  have  been 
or  may  hereafter  be  set  aside  by  any  court  of  com- 
petent jurisdiction,  or  shall  have  been  or  may  here- 
after be  canceled,  as  provided  by  law,  shall  be  subject 
to  disposition,  sale  and  redemption  for  the  enforce- 
ment and  collection  of  such  tax  liens  in  the  method 
and  manner  provided  in  this  act  for  the  disposition, 
sale  and  redemption  of  lands  made  subject  to  the  pro- 
visions of  this  act  by  section  sixty  thereof:"  The 
section  further  provides  that  this  section  shall  not 
affect  lands  the  sale  of  which  has  been  set  aside  for 
any  reason  affecting  the  validity  of  the  tax.  It  further 
provides  that  the  court  may  enter  a  decree  for  the  sale 
of  land  for  taxes  for  any  year  prior  to  1891  without 
making  a  charge  for  interest,  in  its  discretion.  It  also 
provides  that  before  sale,  the  auditor  general  shall 
accept  any  tax  assessed  in  1890  or  prior  years,  with 
only  collection  fees  and  expenses  added. 

§138  provides:   "The  auditor  general  may  cause  an 
examination   to  be   made   of   the   proceedings   under 
which  any  lands  bid  to  the  state,  and  which  have  not 
been   deeded   by   the   auditor   general,    were    sold    for 
delinquent  taxes  and  bid  to  the  state  under  the  pro- 
O'Connor,    146    Mich.    504,  the      purchase    has    expired,    required 
court  intimates   that  the  power      to  be  given  by  §143  of  the  tax 
of  the  Auditor  General  to  can-      law,  (Act  128  of  Public  Acts  of 
eel  a  tax  deed  is  not  lost  even      1901). 
after  the   six   months    notice   of 


253  ACCOUNTING  WITH  COLLECTOR 


visions  of  any  general  tax  law,  and  if  he  shall  find 
that  such  sales  or  the  decrees  under  and  by  virtue  of 
which  such  sales  were  made  were  in  contravention  of 
any  provision  of  the  laws  in  force  at  the  time  such 
decree  were  entered  or  sales  made,  he  may  cancel  such 
sales  and  proceed  at  any  time  to  enforce  the  collection 
of  such  taxes  under  and  in  accordance  with  the  pro- 
visions of  this  act,  as  in  the  case  of  lands  returned  or 
sold  thereunder." 

§179.     Right  to  Pay  Delinquent  Tax. 

Any  person  may  pay  any  tax  or  an  undivided  portion  of 
them,  at  any  time  before  the  land  is  sold.  They  must 
pay  the  statutory  charges  incurred,  and  interest  as  fixed 
by  the  statute.  The  legislature  has  the  power  to  change  the 
rate  of  interest  and  amount  of  charges  after  the  land  has 
been  returned82. 

Statutory  Provisions. 

C.  L.  §3876:  "Any  one  may  pay  the  taxes  or  any 
one  of  the  several  taxes  or  any  part  thereof  on  any 
parcel  of  land  and  the  treasurer  shall  note  across  the 
face  of  the  receipt  in  ink,  any  portion  of  the  taxes 
remaining  unpaid.  He  may  pay  any  tax  whether 
levied  on  personal  or  real  property,  under  protest  to 
the  treasurer,  specifying  at  the  time  in  writing  signed 
by  him,  the  grounds  of  such  protest,  *  *  *  Any 
person  owning  an  undivided  share,  or  other  part  or 
parcel  of  real  property  assessed  in  one  description, 

82.     Webster  v.  Auditor  Gen-  protests   do   not   apply  to   pro- 

era!,  121  Mich.  668.     As  pointed  tests  made  to  the  county  treas- 

out  in  Weston  v.  Luce  County,  urer. 
102     Mich.     528,    the     statutory 


179  THE  LAW  OF  TAXATION  254 

may  pay  on  the  part  thus  owned  by  paying  an  amount 
having  the  same  relation  to  the  whole  tax  as  the  part 
on  which  payment  is  made  has  to  the  whole  parcel. 
The  person  making  such  payment  shall  accurately 
describe  the  part  or  share  on  which  he  makes  payment, 
and  the  receipt  given  and  the  record  of  the  receiving 
officer  shall  show  such  description,  and  by  whom  paid ; 
and  in  case  of  the  sale  of  the  remaining  part  or  share 
for  non-payment  of  taxes,  he  may  purchase  the  same  in 
like  manner  as  any  disinterested  person  could.  Any 
person  having  a  lien  on  property,  may  after  thirty 
days  from  the  time  the  tax  is  payable,  pay  the  taxes 
thereon,  and  the  same  may  be  added  to  his  lien  and 
recovered  with  the  rate  of  interest  born  by  the  lien. 
A  tenant  of  real  estate  may  pay  the  taxes  thereon  and 
deduct  the  same  from  his  rent  unless  there  be  an  agree- 
ment to  the  contrary.  Such  payment  may  be  made  to 
the  township  treasurer  while  the  tax  roll  is  in  his 
hands,  or  afterwards  to  the  county  treasurer.  The 
receipt  given  shall  be  evidence  of  such  payment." 

C.  L.  §3881  provides  for  payment  to  the  county 
treasurer,  as  provided  in  §3876,  supra,  after  the  return 
of  the  lands  to  him. 

C.  L.  §3882  provides  for  such  payment  with  interest 
at  the  rate  of  one  per  cent  a  month  from  March  1st, 
together  with  a  ±%  collection  fee;  and  on  and  after 
October  1st,  preceeding  the  sale,  a  further  charge  of 
one  dollar  for  expenses. 

C.  L.  §3897,  as  amended  by  Act  262  of  Public  Acts 
of  1899  provides:  "Any  person  owning  any  of  the 
lands  sold  as  aforesaid,  or  any  interest  therein,  may 
at  any  time  before  the  first  Tuesday  in  May  in  the 


255  .uvnr.vn.v;  WITH  COLLECTOR  i  II'.' 

year  following  such  sale,  redeem  any  parcel  of  such 
lands  or  any  part  or  interest  in  such  lands,  by  showing 
to  the  satisfaction  of  the  county  treasurer  or  auditor 
general  that  he  owns  only  that  part  or  interest  in  the 
same  which  he  proposes  to  redeem,  by  paying  to  the 
county  treasurer  or  auditor  general  the  amount  of  the 
sale  of  the  parcel  of  land,  or  the  portion  thereof  wished 
to  be  redeemed,  and  interest  thereon  from  the  date  of 
such  sale." 

The  provisions  in  relation  to  the  redemption  of  lands,  or 
the  payment  of  delinquent  taxes,  are  subject  to  amend- 
ment by  the  legislature.  The  court  held  in  reference  to 
such  amendment,  that  the  amended  section  took  the  place 
of,  and  repealed  the  original  one,  and,  being  the  only  act 
in  force  providing  for  redemption,  it  must  govern;  that  it 
must  be  assumed  that  such  was  the  intention  of  the  legis- 
lature, as  the  only  alternative  would  be  to  infer  an  intention 
to  cut  off  all  redemption  as  to  prior  sales,  which  would  not 
only  be  contrary  to  uniform  state  policy  in  that  regard,  and 
therefore  not  to  be  deduced  by  slight  inference,  but  it  would 
affect  injuriously  the  rights  of  those  who  before  were 
entitled  to  redeem83. 


83.     C.     L.     1871,     §1059,     re-  law   affecting  the    remedy  is    in 

quired   the   payment   of  interest  such    cases    subject    to  amend- 

at  the  rate  of  50%;  as  amended  ment,  even  though  the  time  fixed 

by  Act  17  of  Laws  of  1875,  the  for   the   sale   or    redemption   be 

rate  of  interest  was  reduced  to  shortened."      "It    is   evident   that 

25%.     Flint  &  P.  M.  Ry.  v.  Sag-  the    provision    for    the    sale    of 

inaw      County     Treasurer,      32  state   tax   lands  at  private  sale 

Mich.    260,    261.      In    Muirhead  is  not  one  for  the  benefit  of  the 

v.  Sands,  111   Mich.  487,  491,  it  original  owner,  as  the  period  of 

is    held   that   the   period   of   re-  redemption  fixed  by  the  statute 

demption     may    -be     shortened.  is    precisely    the    same    whether 

The  court  says:    "But  the  pro-  the    state    or   an    individual    be- 

ceeding  is   essentially  in  itivitum,  comes  the  purchaser."     See  also 

and    the    proceeding   on    a    sale  25   Am.   &   Eng.   Enc.   Law,   1st 

of  land  is  a  remedy  for  the  de-  Ed.,    410;    Baldwin    v.   Ely,    66 

linquency  of  the  tax  payer.  The  Wis.  171. 


CHAPTER  XI. 
THE  SALE  AND  PURCHASERS. 


§180.  Amount  Sold. 

§181.  Fraud   in   Sale. 

§182.  Several  Parcels  Sold  As  One. 

§183.  Who  May  Make  Sale. 

§184.  Purchasers  in  General. 

§185.  Occupant  as  Purchaser. 

§186.  Tenant  in   Common  as   Purchaser. 

§187.  Life  Tenant  as  Purchaser. 

§188.  Purchaser  Holding  Land  Contract. 

§189.  Mortgagee  as  Purchaser. 

§190.  Lessee  as   Purchaser. 

§191.  Husband  and  Wife  as  Purchasers. 

§192.  Public  Officers  as  Purchasers. 

§193.  Payment,  etc. 

§194.  Caveat  Emptor. 

§195.  Surplus. 

§196.  State  Tax  Lands. 

§197.  Purchase  of  State  Tax  Lands. 

§198.  Period  of  Redemption. 

§199.  Sale  of  Redemption  for  Less  than  Taxes  Due. 

§200.  Refunding  of  Taxes    by  Owner. 

§201.  Cumulative  Tax  Titles. 


§180.     Amount  Sold. 

Unless  specifically  restricted  by  statute,  there  is  no  limit 
to  the  amount  of  land  that  could  be  sold  to  pay  the  tax1. 
No  presumption  of  fraud  arises  because  a  large  tract  of 
land  is  sold  for  a  small  amount  of  taxes2.  Except  in  cases 
of  express  statutory  authority,  the  auditor  general  has  no 

1.     §12  of   Chap.  VI  of  R.  S.  laws    of   1842,   p.   97.     Sibley  v. 

1838  limited  tax  sales  to  tracts  Smith,  2  Mich.  487,  498. 

containing    not    more    than    40  2.     Tweed  v.  Metcalf,  4  Mich, 

acres;    but    this    was    repealed,  579,  601. 


257  THE  SALE  AND  PURCHASERS  ?    1  x  1 

power  or  authority  to  adjourn  a  tax  sale;  and  a  sale  so 
illegally  held  would  be  a  nullity,  and  the  county  would  not 
be  entitled  to  any  credits  for  lands  so  bid  in  by  the  state 
at  such  illegal  sale3.  The  same  rule  is  applied  to  sales  of 
personal  property  to  satisfy  a  delinquent  tax  as  in  judicial 
sales.  The  municipality  can  only  sell  sufficient  to  pay  the 
tax  due.  It  cannot  offer  in  gross  an  unreasonable  amount 
of  separable  personal  property,  the  value  of  which  is  largely 
in  excess  of  the  tax,  and  a  bill  will  lie  to  restain  such  action4. 

§181.     Fraud  in  Sale. 

All  combinations  or  collusion  between  bidders  at  a  sale 
of  lands  for  delinquent  taxes,  which  has  a  tendency  to  pre- 
vent free  and  open  competition,  is  fraudulent  in  law  and 
renders  a  tax  sale  void  as  to  any  person  in  the  combination. 
But  a  bidder  at  a  tax  sale  is  not  affected  by  any  agreement 
or  understanding  among  others  to  which  he  was  not  a 
party.  It  is  the  policy  of  the  law  to  encourage  purchasers 
at  tax  sales,  and  under  any  other  rule  no  person  would  be 
safe  in  making  a  bid5.  The  sale  will  be  void  when  the  sell- 
ing officer,  by  fraudulent  misrepresentations,  keeps  the 
owner  of  property  away  from  the  tax  sale8.  The  county 
treasurer  or  other  selling  officer  cannot  himself  become  the 
purchaser  of  land  at  a  tax  sale.  It  is  contrary  to  every 
sound  principle  of  equity  to  allow  an  agent  who  is 

3.  Houghton     Co.  v.  Auditor      chaser  is  the  owner  of  one   of 
General,  41  Mich.  28,  30.  the   parcels   and   in    default   for 

4.  Starr     v.      Shepard,      145      the  taxes. 

Mich.     302,     where     the     stock-  6.     Christian      v.      Soderberg. 

holders  of  the  company  brought  118  Mich.  47:  Taylor  v.  Snyder 

an   injunction  bill.  Walk     Ch.     490,     holding     that 

5.  Case  v.  Dean,  16  Mich.  12,  fraudulent    purchaser   is    not    cn- 
29.     This   case   also   holds   that  titled    to    a   repayment    of    his 
a  sale  of  several  distinct  parcels,  money. 

jointly,   is    bad    where   the    pur- 


§  182  THE  LAW  OF  TAXATION 


authorized  to  sell  property,  for  the  best  price  that  can  be 
obtained  for  it,  to  become  the  purchaser  himself.  It  is 
immaterial  whether  the  sale  be  public  or  private;  whether 
the  agent  purchase  in  his  own  name  or  in  that  of  another. 
The  object  is  to  secure  fidelity  on  the  part  of  the  agent  to 
the  principal;  and  it  is  applicable  to  public  agents  as  well 
as  others,  and  should  if  anything,  be  enforced  more  rigidly 
against  them  as  they  have  greater  opportunities  of  abusing 
their  trust.  The  respective  duties  of  buyers  and  sellers  at 
a  tax  sale  are  incompatible  with  each  other,  and  no  person, 
in  whatever  capacity  he  may  undertake  to  act,  can  sustain 
both  characters.  The  provision  of  the  statute  in  requiring 
the  tax  to  be  made  from  the  sale  of  as  small  a  portion  of 
the  parcel  of  land  as  possible  is  in  the  interest  of  the  tax 
payer.  It  is  the  duty  of  the  treasurer  to  take  care  of  that 
interest.  He  ought  not  to  act  for  himself  or  any  other 
purchaser  because  the  two  interests  conflict7.  In  this 
respect,  the  sales  of  land  for  delinquent  taxes  are  governed 
by  the  rules  relating  to  judicial  sales8. 

§182.     Several  Parcels  Sold  as  One. 

The  rule  as  to  purchase  by  a  cotenant  also  applies  to  an 
owner  of  one  of  several  distinct  parcels  sold  as  one,  upon 
the  principle  that  one  by  his  own  default  cannot  acquire 
an  advantage  over  another.  Such  an  owner  could  have 
separated  and  paid  his  own  tax  had  he  so  desired9. 

7.  Clute    v.    Barton,    2    Mich.       Mich.    77:    Hall    v.    Collins,    117 
192.    195;    Pierce    v.    Baughman.       Mich.  617,  618. 

14  Pick  356;  Hall  v.  Collins,  117  9.     Coley     v.     Waterman,     16 

Mich.   617,   619.     See  also,   Pur-  Mich.  366;  Roe  v.  Williston,  20 

chasers,  Public  officers,  post.  Wis.   228. 

8.  Leaton      v.      Murphy,      78 


TIIK   SAI.K    AND    IM'KC  HAM  K-  L83,  184 

£183.     Who  May  Make  Sale. 

The  county  treasurer,  or  his  deputy  in  his  absence,  may 
conduct  a  tax  sale10. 

Statutory  Provision. 

C.  L.  §3893  provides  for  the  sale  of  the  lands 
mentioned  by  the  decree,  by  the  county  treasurer, 
begining  on  the  first  Tuesday  in  May  and  continue 
the  same  from  day  to  day,  but  making  his  report  to 
the  auditor  general  within  twenty  days  after  the  com- 
mencement of  the  sale. 

They  may  also  be  made  by  the  auditor  general  or  his 
deputy,  or  in  general  by  any  officer  authorized  by  law.  A 
sale  made  by  the  county  treasurer  instead  of  the  auditor 
general  may  be  validated  by  the  legislature11.  The  making 
of  these  sales  is  an  official  act  and  must  be  performed  by 
an  officer.  While  such  officer  may  employ  a  clerk  to  assist 
him  in  conducting  such  sales,  they  must  be  made  by  him- 
self or  his  authorized  deputy,  or  under  his  direction.  He 
•cannot  delegate  his  power  to  a  mere  clerk12. 

£184.     Purchasers  in  General. 

There  are  a  great  many  cases  in  which  parties  standing 
in  particular  relations  to  the  land,  or  to  the  owner  or  other 
person  interested  therein,  are  not  suffered  to  acquire  tax 
titles  and  rely  upon  them  as  against  other  claimants.  Some 
of  those  are  very  plain  and  it  is  quite  unnecessary  to  do 
more  than  name  them.  A  tenant,  who  has  covenanted  to 
pay  the  taxes,  cannot  be  suffered  to  neglect  this  duty,  and 

10.  Hall  v.  Collins,  117  Mich.      &  Co.,  123  Mich.  74. 

•617.  12.     Hall  v.  ColliiK.  117  Mich. 

11.  Hoffman  v.  Pack,  Woods      617,  618. 


§  184  THE  LAW  OF  TAXATION  260 

then  acquire  a  tax  title  which  shall  cut  off  the  title  of  his 
landlord.  Neither  shall  the  purchaser  in  possession  under 
an  executory  contract  be  allowed  to  cut  off  the  rights  of  his 
vendor  by  a  like  purchase,  nor  a  mortgagor  that  of  his 
mortgagee.  A  tax  purchase  made  while  such  a  relation 
exists  is  made  in  wrong13.  In  general,  any  person  may 
become  the  purchaser  of  a  tax  title  who  is  not  in  default 
himself  in  allowing  the  premises  to  be  sold,  or  who  is  under 
no  duty,  either  with  respect  to  himself  or  others  to  pay  any 
portion  of  the  tax,  and  who  does  not  stand  in  the  relation 
of  a  trustee  to  any  party  in  interest.  One  who  indemnifies 
a  mortgagee  against  certain  tax  titles  cannot  thereafter 
purchase  such  titles  and  oppose  them  to  the  mortgage14. 
Where  a  grantor,  in  pursuance  of  his  covenants  of  warranty, 
furnishes  the  money  to  one  of  several  cotenants  to  clear  up 
an  outstanding  tax  title,  a  conveyance  thereof  insures  to  the 
benefit  of  all  the  cotenants;  and  the  facts  may  be  shown 
by  parol  even  in  an  action  at  law15.  A  solicitor  for  a  client 
in  foreclosure  proceedings,  who  bids  in  the  mortgaged 
premises  at  a  tax  sale,  will  be  presumed  to  have  done  so  in 

13.  Brown      v.      Avery,      119  not    use    the    same    upon    whfch 
Mich.    384,    387,    quoting    from  to  predicate  a  bar  of  the  statute 
Conn.     Mut.    Life     Ins.     Co.    v.  of  limitations  against  the  plain- 
Bulte,  45  Mich.  113;  also  Avery  tiff's    title.      To   permit    him    1o 
v.  Judd,  21  Wis.  262;  Washing-  do     so     would     be  to     sanction 
ton,  etc.,  Trust   Co.  v.    McKen-  fraud.     This   tax  title   was   paid 
zie,  64  Minn.  273.  for    by    the  grantor    of    Myron 

14.  Wyman  v.  Baer,  46  Mich.  Richards,    and    belonged    to    hi? 
418.  estate   in    equity.      This   defend- 

15.  Richards   v.    Richards,   75  ant  Simeon  Richards  well  knew, 
Mich.    408,    where    a    co-tenant  and  he  will  not  be  allowed,  even 
acquired     a     tax    title    purchased  in   a  court   of  law,  to   set  up   a 
with  money  paid  in  accordance  claim  of  ownership,  which  could 
with  a  verbal  contract  with  the  not   be    in    good   faith,   upon    it, 
then     deceased     original     owner.  so  as  to  set  the  statute  of  limi- 
The  court  says:     "But  whether  tations     in    motion    against    its 
or  not  he  went  into  possession  rightful    owners."      See    also    De- 
under    this     tax     title,     and     so  freese  v.  Lake,  109  Mich.  415.  427. 
claimed    to    the    world,    he    can- 


•jt;i  i  UK  9  M  i     \M)  IM  K(  ii  \ 


the  interest  of  his  client16.  A  tax  title  purchased  by  the 
original  owner,  merges  in  the  original  title.  In  such  case, 
it  is  immaterial  whether  the  title  purchased  was  valid  or 
invalid17.  One  who  obtain  the  record  title  to  land  by  fraud 
cannot  become  the  purchaser  of  a  tax  title.  The  tax  title 
merges  with  the  fee;  and  when  the  original  title  is  divested 
tecause  of  the  fraud,  the  tax  title  is  not  thereby  revived18. 
The  general  principle  applicable  to  these  cases  is,  that  a 
purchase  made  by  one  whose  duty  it  was  to  pay  the  taxes 
shall  operate  as  a  payment  only;  he  shall  acquire  no  rights 
as  against  a  third  party,  by  neglect  of  the  duty  which  he 
owed  to  such  party.  To  preclude  any  person  from  making 
and  relying  upon  a  purchase  of  lands  at  a  tax  sale,  there 
must  be  something  in  the  circumstances  of  the  case  which 
imposes  upon  him  a  duty  to  the  state  to  pay  the  tax,  or 
something  which  renders  it  inequitable,  as  between  himself 
and  the  holder  of  the  existing  title,  that  he  should  make  the 
purchase.  There  can  be  no  estoppel  against  one  purchas- 
ing tax  titles  except  against  one  who  had  a  duty  to  pay 
the  tax  or  remove  the  burden.  Therefore,  a  parol  agree- 
ment to  purchase  lands,  the  consideration  being  to  assume 
the  taxes  and  pay  an  agreed  price  in  addition,  l)eing  void 

16.  Boardman    v.    Boozewin-  statute;   all    others   would   have 
kel.  121  Mich.  320;  in  Sherman  to  pay  such  sums  as  the  holder 
v.  Fisher,  138  Mich.  391,  the  at-  of    the    title    choose    to    exact, 
torney    was    not    held    to    have  Burton    had    apparantly   a   valid 
purchased    a   tax    title    for    his  title  of  record,  vested  with  the 
client  in  the  absence  of  evidence  statutory   privilege   of   a   recon- 
that  it  was  charged  to  the  client.  veyance.     As   a   matter  of   fact. 

17.  Clippinger       v.       Auditor  his   ownership   was  acquired  by 
General.  135  Mich.  1.  fraud   and   he   was   not   entitled 

18.  Chandler    v.     Clark.    151  to  a    reconveyance.      The   con- 
Mich.     159,     183:      "Only     such  veyance   intended   to  restore   to 
owners     ("original    owner,    etc. "I  a  former  owner  the  title  which 
could  call  upon  the  state's  gran-  he  has  lost  cannot  be  made  the 
tee  for  a  reconveyance  hy  pav-  ha«i<;  <^f  an  entirely  distinct  and 
inc    the    sums    required    In-    the  new  title." 


§  185  THE  LAW  OF  TAXATION  262 

under  the  statute  of  frauds,  will  not  disqualify  the  person 
making  such  agreement  from  purchasing  the  lands  at  a 
tax  sale;  but  where  such  would-be  purchaser  induces  the 
owner  to  remain  quiet  under  such  an  agreement,  and  then 
secretly  purchases  the  land  at  a  tax  sale,  the  sale  will  be 
set  aside19. 

§185.     Occupant  as  Purchaser. 

Unless  a  duty  has  been  neglected,  or  a  trust  relation 
exists,  whereby  it  was  the  duty  of  the  purchaser  to  protect 
the  land,  or  part  of  it,  from  sale,  any  person  may  become 
the  purchaser.  To  preclude  any  person  from  making  or 
relying  upon  a  purchase  of  lands  at  a  tax  sale,  there  must 
be  something  in  the  circumstances  of  the  case  which  imposes 
upon  him  a  duty  to  the  state  to  pay  the  tax,  or  something 
which  renders  it  inequitable,  as  between  himself  and  the 
holder  of  the  existing  title,  that  he  should  make  the  pur- 
chase. If,  however,  the  occupant  goes  into  possession  with 
the  aid  of  the  other  tenants,  or  in  recognition  of  their 
rights,  he  incurs  duties  which  would  be  inconsistent  with 
his  holding  a  tax  title20.  Also,  where  the  son  of  a 
tenant  purchases  the  tax  title  and  the  tenant  temporarily 
and  fraudulently  removes  for  the  purpose  of  giving  posses- 

19.  Ball  v.  Harpham,  140  clusively  bar  such  occupant 
Mich.  661;  in  this  case  the  writ  from  being  a  tax  title  pur- 
of  assistance  was  stayed  for  chaser:  and  Sands  v.  Davis,  40 
two  months  after  a  final  dis-  Mich.  14,  holding  that  the 
position  of  the  case,  to  finally  owner  of  an  undivided  interest, 
issue  if  complainant  defaulted  in  who  enters  as  a  stranger  to  his 
reimbursing  the  defendant.  The  co-tenants,  is  not  estopped  from 
court  approves  Blackwood  v.  setting  up  against  them  an  ad- 
Van  Vliet,  30  Mich.  118,  where  verse  tax  title  that  arose  from 
it  is  held  that  the  taking  pos-  his  grantor's  default  prior  to  his 
session  of  land  before  a  tax  was  own  purchase, 
actually  levied,  but  after  the  20.  Blackwood  v.  Van  Vliet. 
duty  to  pay  had  become  fixed  30  Mich.  118,  121 ;  Simons  v. 
on  other  shoulders,  did  not  con-  Rood,  129  Mich.  345,  348. 


TIIKSAI.K    \\D  ITUCHAM -:i<>  i    I-''- 

sion  to  the  son,  the  period  of  limitation  will  not  begin  to 
run  until  the  owner  has  had  notice  of  such  act21.  An 
occupant  of  premises,  being  liable  for  the  tax,  cannot  pur- 
chase his  premises  at  a  tax  sale  for  taxes  which  were 
assessed  subsequent  to  his  occupancy;  but  he  may  become 
a  purchaser  for  taxes  assessed  prior  thereto  because  there 
was  no  duty  resting  upon  him  to  pay  such  taxes.  An 
occupant  in  possession  of  premises  cannot  strengthen  his 
title  without  statutory  permission,  by  purchasing  tax  titles, 
even  though  the  tax  was  assessed  l>efore  he  purchased  or 
took  possession.  The  reason  for  this  rule  is  that  a  tax 
sale  is  a  breaking  up  of  all  former  titles,  and  operates  not 
to  support,  but  to  destroy  them22.  Where  an  occupant 
would  otherwise  have  a  right  to  purchase  except  for  a 
prior  claim  of  ownership,  he  may  waive  such  claim,  as  a 
devise,  and  hold  under  the  tax  title23.  A  grantor  of 
premises,  remaining  in  possession  of  premises,  is  a  tenant 
at  sufferance,  and  will  be  presumed  to  have  purchased  a 
tax  title  in  the  interest  of  his  grantee.  This  presumption 
can  only  be  over-thrown  by  circumstances  tending  to  show 
a  clear  renunciation  of  the  rights  of  the  grantor,  brought 
home  to  the  knowledge  of  the  grantee,  and  of  a  subsequent, 
adverse  and  exclusive  possession  under  claim  of  superior 
right24. 

£186.     Purchasers.     Tenants  in  Common. 

A  cotenant  who  purchases  a  tax  title  stands  simply  as 

21.  Williams      v.       Fox.       152  bona   fide  dispute  as   to  title,   the 
Mich.  215.  occupant  may  allow  his  land  to 

22.  Lacey  v.    Davis,   4    Mich.  be     sold     and     bid     it     in     to 
140,    153;    Douglass   v.    Danger-  strengthen  his  title. 

field,   10   Ohio   152;   Ballance  v.  23.     Defreese     v.     Lake,     109 

Forsyth,    12    How.    18;    Veris    v.  Mich.  415.  427. 

Thomas.  12  111.  442.     In  Jeffery  24.     Paldi    v.    Paldi.   84    Mich. 

v.  Hursh,  4r>  Mich.  59,  the  court  346,  350. 

intimates    that    where   there    is    a 


186  THE  LAW  OF  TAXATION 


one  who  has  paid  under  compulsion  taxes  assessed  against 
the  property  held  by  him  in  common  with  others.  The 
burden  is  cast  upon  all  of  the  cotenants  to  pay  the  taxes 
assessed  against  the  land.  This  each  might  have  dis- 
charged, so  far  as  his  own  interest  was  concerned,  by  pay- 
ing his  aliquot  proportion  of  the  tax,  and  .thus  relieve  such 
interest  from  the  lien  of  the  tax  which  the  law  imposes 
upon  it.  Where  all  neglect  to  do  this,  and  the  state  resorts 
to  the  coercive  measure  of  a  sale  to  compel  it,  one  cotenant. 
by  bidding  in  the  property,  can  acquire  no  title  against  his 
other  cotenants.  The  reason  for  this  rule  being,  that  being 
in  default  himself,  his  default  as  well  as  that  of  his  co- 
tenants,  occasioned  the  sale,  and  he  cannot  be  permitted 
to  take  advantage  of  his  own  neglect  to  acquire  the  title 
of  others.  Such  a  purchase  simply  gives  him  a  right  to 
compel  contribution  from  his  cotenants25. 

The  reason  usually  assigned  for  not  permitting  such  a 
purchase  is  that  the  sale  is  based  in  part  upon  the  pur- 
chasers own  default,  but  it  is  also  true  that  in  a  great  pro- 
portion of  such  cases  the  parties  stand  to  each  other  in 
confidential  relations;  and  it  may  without  much  violence  to 
the  facts  be  assumed  that  they  do  so  in  all  cases.  No 
doubt,  also,  that  the  rule  which  precludes  their  speculating 
in  each  others  defaults  is  grounded  on  sound  policy.  Still, 
the  purchaser  does  not  lose  what  he  has  paid  beyond  what 
is  needful  for  discharging  the  lien  upon  his  own  interest: 
his  cotenants  must  refund  to  him  such  portion  as  is  found 
to  be  just.  The  purchaser  is  a  trustee  for  the  others,  but 


25.     Page  v.  Webster,  8  Mich.  ?8   111.  342:   McConnel  v.  Kone- 

263:   Butler  v.   Porter,   13   Mich.  nel.  46  111.   519;  Dahlem  v.  Ab- 

292;    Sleight   v.    Roe,    125    Mich.  bott,  146  Mich.  605;  Richards  v. 

585,   588:   Frentz  v.   Klotsch,  28  Richards,  75  Mich.  408. 
Wis.    312:    Chickering    v..  Faile. 


265  Tin-.  BALI    AM»  i-i  -KI  HAS)  ?   : 

they  must  repay  their  proportion  of  his  advances26.  The 
cotenants,  under  such  circumstances,  will  not  stand  in  any 
better  position,  if  he  procure  a  stranger  to  bid  in  the  land 
at  a  tax  sale  and  purchase  the  title  from  him27.  One  tenant 
in  common,  however,  may  acquire  a  tax  title  against  his 
cotenant  when  such  cotenant  has  abandoned  the  premises, 
or  where  the  tax  title  was  not  suffered  to  accrue  through 
the  default  the  purchasing  tenant,  or  where  the  cotenants 
received  their  respective  titles  through  different  instruments, 
and  no  relationship  of  confidence  or  trust  existed  between 
them2*.  Where  the  title  of  the  purchaser  was  not  derived 
from  his  cotenants,  he  owes  them  no  duty.  The  propriety  of 
applying  the  doctrines  between  lessor  and  lessee,  to  a  vendor 
and  vandee,  may  well  be  doubted.  The  vendee  acquires  the 
title  for  himself,  and  his  faith  is  not  pledged  to  maintain 
the  title  of  the  vendor.  The  rights  of  the  vendor  are  in- 
tended to  be  extinguished  by  his  sale,  and  he  has  no  con- 
tinuing interest  in  the  maintainance  of  his  title  unless  he 
should  be  called  upon  in  consequence  of  some  warrant  of 
covenant  in  his  deed.  The  property  having  become  by  the 
sale  the  property  of  the  vendee,  he  has  a  right  to  fortify 
that  title  by  the  purchase  of  any  other  which  may  protect 
him  in  the  quiet  enjoyment  of  the  premises.  No  principle 
of  morality  restrains  him  from  doing  this;  nor  is  either 
the  letter  or  spirit  of  the  contract  violated.  Under  these 
principles,  a  cotenant  could  purchase,  also,  an  outstanding 
tax  title  based  upon  taxes  which  were  assessed  either  be- 

20.     Connecticut,  etc.,    Ins.  Co.  Ahrens,   55    Mich.    111.      In    St. 

v.  Bulle.  -r>  Mich.  in.  121.  Mary's    Power  Co.   v.   Chandler. 

27.  Dpbois      v.      Canipau,  24  133  Mich.  470,  a  co-tenant  claim- 
Mich.   360,  368.  intf  adversely  to  his  co-tenants. 

28.  Boynton  v.  Veldman,  m  is    held    capable    of    purchasing 
Mich.      555:      Chamberlain  v.  and  relying  upon  a  tax  title. 


>;§§  IS?',  Ibb.  IbU      THE  LAW  OF  TAXATION  2G6 

fore  he  purchased  his  interest,  or  before  he  took  possession 
of  the  premises29. 

§187.     Purchaser.     Life  Tenant. 

It  is  the  duty  of  a  tenant  for  life  to  pay  the  taxes,  and 
therefore  he  cannot  acquire  a  tax  title  to  the  exclusion  of 
the  remainderman.  When  there  is  a  second  life  tenant 
whose  term  commences  on  the  termination  of  the  first,  he  is 
under  no  obligation  to  preserve  the  estate,  not  yet  having 
come  into  its  enjoyment.  If,  however,  he  chooses  to  do  so 
that  he  might  preserve  his  term  or  interest,  he  should  be 
content  to  look  to  the  occupant  or  owner  of  the  first  life 
estate  for  reimbursement,  or  to  the  remainderman,  to  whose 
benefit  as  well  as  his  own,  such  payment  inured30. 

§188.     Purchaser  Holding  Land  Contract. 

A  purchaser  of  premises  in  possession  under  a  land  con- 
tract, cannot  acquire  a  tax  title  as  against  his  vendor. 
Although  an  outstanding  title  might  be  sufficient  to  defeat 
the  contract,  yet  if  the  vendee  voluntarily  heals  the  defect 
by  his  own  act,  he  cannot  avail  himself  of  the  purchase  to 
destroy  the  original  contract.  The  same  rule  applies  here 
that  obtains  between  landlord  and  tenant31. 

§189.     Purchaser.     Mortgagee. 

A  mortgagee  is  under  no  legal  obligation,  either  to  the 
owner  of  the  land,  or  to  another  mortgagee,  to  pay  the 

29.  Sands  v.   Davis,  40  Mich.      same  principle  was  applied  to  a 
14,   19,  questioned  in   Simons  v.      mortgage  foreclosure. 

Reed.    129    Mich.    545;    Blights  31.     Curran     v.      Banks,      123 

Lessee   v.    Rochester,   7   Wheat.  Mich.  594;  Murrell  v.  Goodyear. 

548;    reaffrmed    in    Olmstead    v.  \L  De  Gex,  F.  &  J.  432:  Hubbard 

Tracy,  145  Mich.  299.  v.  Shepard,  117  Mich.  25:  Boyn- 

30.  Jeffers     v.     Sydham.     129  ton  v.  Veldman,  131  Mich.  555: 
Mich.     440:     Defreese    v.     Lake,  Bertram  v.  Cook,  32  Mich.  518: 
109    Mich.   415,   427.      In    Brown  Pringle    v.    Wagoner,    110    Mich, 
v.    Brogan,    119    Mich.    218,    the  612.     See  §199  supra. 


TI1K  SAI.K  AXD  PURSIIASES  §  189 

taxes  upon  the  land.  To  the  state,  each  of  the  three  may 
he  said  to  owe  the  duty  to  pay  the  taxes;  and  the  state  will 
sell  the  interest  of  all  if  none  of  the  three  shall  pay.  As 
between  themselves,  the  primary  duty  is  upon  the  mort- 
gagor; but  if  he  makes  default,  either  of  the  mortgagees 
may  pay,  and  one  of  the  two  must  pay,  or  the  land  be  sold 
and  the  lien  extinguished.  But  in  such  cases  where  each 
has  the  same  right,  payment  by  one  is  allowed  to  increase 
the  amount  of  his  incumbrance  for  in  no  other  way  could 
he  have  security  for  its  repayment  by  the  mortgagor,  who 
ought  to  protect  the  security  he  has  given.  When,  there- 
fore, each  mortgagee  has  the  same  interest  to  do  so.  and 
the  same  means  of  compelling  repayment,  it  may  well  be 
held  that  a  purchase  by  one  shall  not  be  suffered  to  cut  off 
the  right  of  the  other,  because  it  is  based  as  much  upon 
•  his  own  default  as  upon  that  of  a  party  whose  lien  he  seeks 
to  extinguish.  It  is  as  just  and  as  politic  here,  as  it  is  in 
the  case  of  tenants  in  common,  to  hold  that  the  purchase  is 
only  a  payment  of  the  tax82.  Where  a  mortgagee,  instead 
of  making  payment  of  the  taxes,  makes  a  purchase  of  the 
land  at  a  tax  sale,  either  in  his  own  name  or  in  the  name 
of  any  other  person  who  has  his  money  for  the  purpose, 
there  is  no  doubt  of  the  right  of  the  mortgagor  to  have  the 
purchase  treated  as  a  payment,  and  to  compel  the  cancel- 
ment  of  the  certificates  or  deed,  on  refunding  the  amount 
paid  with  interest.  But  the  right  to  treat  the  purchase  as 
a  payment  is  the  right  of  the  mortgagor  only,  and  rests 
upon  a  principle  of  equity  that  is  necessary  for  his  pro- 

32.    Connecticut,    etc.,   Ins.   Co.  ants  claiming  that  the  purchase 

v.     Bulte,    45     Mich.     113,     112,  of  a  tax  title  was  a  payment  of 

where   the    time   of   redemption  the  tax.     Horton  v.  Ingersol,  13 

from  a  foreclosed  mortgage  was  Mich.  409. 
held  to  be  extended  by  defend- 


§  1M>  THE  LAW  OF  TAXATION  :J-'is 

tection.  Neither  party  to  a  mortgage  can  be  suffered, 
against  the  will  of  the  other,  to  buy  at  a  tax  sale  and 
thereby  cut  off  the  other's  interest.  But  either  may  bid,  as 
a  stranger  to  the  title  may,  if  the  other  makes  no  objection33. 
Where  a  mortgagee  furnishes  the  money  to  pay  or  pur- 
chase a  tax  title  in  the  name  of  a  third  person,  having  only 
the  oral  agreement  of  such  person  to  convey,  there  is  no 
resulting  trust,  and  such  payment  cannot  be  added  to  the 
principal  unless  there  is  an  actual  conveyance  of  such  title34. 
A  mortgagee  has  no  right  to  suppose  that  the  taxes  will  be 
paid  by  the  owner  of  the  land,  and  where  there  is  ample 
time,  should  notify  such  owner  even  before  redeeming  from 
a  tax  sale.  If  he  pays  prematurely  his  lien  will  not  attach 
for  such  payment  unless  it  is  so  specified  in  the  mortgage35. 
Although  the  mortgage  interest  may  be  assessed  to  the 
mortgagee,  and  there  was  a  legal  duty  upon  the  mortgagee 
to  pay  such  tax  under  the  statute,  neither  the  mortgagor 
nor  his  wife  could  acquire  a  tax  title  against  the  holder  of 
the  mortgage,  or  of  the  mortgage  interest  in  the  land38. 
An  execution  purchaser  of  the  equity  of  redemption  owes 
to  a  prior  mortgagee  the  duty  of  paying  the  taxes,  and  a 
purchase  of  a  tax  title  by  him  will  be  deemed  a  payment 
of  the  tax37.  A  party  in  possession  of  land,  claiming  title, 
who  is  subrogated  to  a  mortgage  thereon  which  he  has 
paid,  cannot,  if  he  has  not  title,  hold  a  lien  for  taxes  paid. 

33.  Maxfield     v.     Wiley,     £6  a  debt  against  the  vendor  with- 
Mich.  252,  255:  Porter  v.  Corbin,  out   proof    of    the    regularity    of 
124  Mich.  201.  the  tax. 

34.  Jones  v.  Wells,  30   Mich.  36.     Chamberlain     v  .  Forbes, 
170.  126  Mich.  86;  Vreeland  v.  Mon- 

35.  Pond  v.  Drake,  50  Mich.  nier,    127    Mich.    304:    Baker    v. 
302.      In    White    v.    Gibson,    14fi  Union  Trust  Co..  129  Mich.  581; 
Mich.    547,    it    is    held    that    the  Darenberg     v.     Ockerman,     130 
payment  of  a  delinquent  tax  by  Mich.  23. 

the  vendor  after  notice  of  a  tax  37.  Fells  v.  Barbour.  58  Mich, 
sale  purchase  will  not  establish  49,  53. 


I  !!K  SALE  AND  PURCHASERS  $  §    1 '.'«>.   I'.il 

The  taxes  paid  may  be  set-off  against  an  accounting  for 
the  use  of  the  land38. 

§190.     Purchaser.     Lessee. 

A  tenant  who  has  covenanted  to  pay  the  taxes  cannot 
be  suffered  to  neglect  this  duty  and  then  acquire  a  title 
which  shall  cut  off  the  title  of  his  landlord.  A  tax  purchase 
made  while  such  a  relation  exists  is  wrong;  and  the  law, 
in  circumvention  of  dishonesty,  will  conclusively  presume 
that  it  was  made  in  the  performance  of  duty,  and  not  in 
repudiation  of  it89.  Where  a  licensee  of  premises  is  ex- 
cluded from  any  rights  conveyed  by  a  certain  deed,  he  is 
not  precluded  from  becoming  a  purchaser  of  a  tax  title  of 
the  premises  from  which  he  is  excluded10.  In  general,  a 
tenant  in  possession  of  the  premises  cannot  acquire  an  out- 
standing title  hostile  to  his  landlord,  and  maintain  any 
action  thereon.  He  must  wait  until  after  he  has  sur- 
rendered the  possession41. 

§191.     Purchaser.     Husband  and  Wife. 

The  law  does  not  permit  the  husband  to  acquire  a  tax 
title  hostile  to  the  title  of  his  wife.  Such  a  title  would 
inure  to  her  benefit  just  as  much  as  though  purchased  in 

38.  Taylor     v.      Roniger,     147  who    had    agreed     to    pay     the 
Mich.   100.  taxes,   allowed    them    to   be    re- 

39.  Connecticut,    etc.,    Ins.    Co.  turned;  and  finally  the  land  was 
v.  Bulte,  45  Mich.  113,  120;  Fells  set  over  to  the  state  as  home- 
v.  Barbour,  58  Mich.  49,  53.  stead  land  and  purchased  by  the 

40.  Munroe    v.   Winegar,   128  tenant.    The  entire  sale  and  set- 
Mich.  309.  tin>?  over  to  the   state   was   set 

41.  Ryerson     v.     Eldred,     18  aside,    though     more     than     six 
Mich.  12,  18;  Nims  v.  Sherman,  months    had    elapsed    after    the 
43  Mich.  45;  Williams  v.  Towle.  land  had  been  conveyed  to  the 
65    Mich.    204.      Lesser    paid    a  land     commissioner     as     home- 
ground    rent.     Tn    Dixon   v.   Lud-  stead  land. 

ington,   130  Mich.  269.   a   tenant 


£§  192,  193  THE  LAW  OF  TAXATION  270 

her  name.     It  could  not  be  made  the  basis  of  an  adverse 
possession  during  her  life42. 


Purchaser.     Public  Officers. 

The  county  treasurer  and  his  deputies  have  certain  duties 
to  perform  for  and  in  behalf  of  the  public,  which  pre- 
cludes them  from  becoming  purchasers  at  a  tax  sale.  The 
records  of  sales  are  kept  in  the  treasurer's  office.  They 
are  to  make  the  sales  to  the  one  who  will  take  the  least 
land  and  pay  the  tax.  When  the  land  is  bid  in  to  the  state, 
and  no  one  takes  the  state  bid  before  the  next  annual  sale, 
it  is  then  his  duty  to  offer  the  land  to  the  highest  bidder48. 
It  is  the  treasurer's  duty  to  keep  an  account  of  all  lands 
sold  from  the  list  bid  in  by  the  state,  and  of  all  lands  on 
which  the  taxes  have  been  paid44.  He  and  his  deputies 
are  always  in  a  position  to  know  the  situation  and  con- 
dition of  every  piece  of  land  in  the  county  which  has  been 
returned  delinquent  'for  taxes,  and  may  at  any  moment 
give  wrong  information  in  relation  thereto.  If  one  seeks 
to  purchase  a  state  bid,  the  treasurer  or  his  deputy  may 
step  in  ahead  and  make  the  purchase45.  This  rule  does  not 
prevent  an  applicant  to  purchase  lands  frpm  handing  an 
application  and  money  to  purchase  certain  lands  to  an 
employe  in  the  office  of  the  auditor  general,  with  a  request 
to  file  such  application  if  the  desired  lands  are  not  sold48. 

§193.     Payment,  Etc. 
The  purchaser  is  bound  to  see  that  the  law  is  complied 

42.  Ward      v.      Nestell,      113  45.     Wait      v.      Gardiner.      12:5 
Mich.       185;       Chamberlain       v.  Mich.    236;    Clute    v.    Barren,    2 
Forbes.  126  Mich.  86;  see   §203.  ^fich.   172:    Hall   v.   Collins,  127 

43.  §79.    Act    206    of    Public  Mich.   617. 

Acts  of  1893:  C.  L.  §3902.  46.     Youngs     v.     Povey,     127 

44.  Act  161  of  Public  Acts  of      Mich.  297. 
1895. 


271  THE  SALE  AND  PURCHASERS  §  194 

\vith  by  the  selling  officers47.  The  applicant  must  deposit 
sufficient  to  pay  for  all  descriptions  applied  for,  or 
specifically  designate  on  which  descriptions  the  sums  paid 
must  be  applied,  or  the  sum  offered  will  not  be  considered 
paid  upon  any  description48.  Payment  is  presumed  to  have 
been  made  at  the  date  of  the  application  and  not  at  the 
date  of  the  deed49.  Where  the  land  is  sold  at  public  sale 
by  the  county  treasurer,  the  purchaser  is  not  bound  to  pay 
all  taxes  assessed  and  a  lien  upon  the  premises:  but  if  jt 
is  sold  at  private  sale  by  the  auditor  general  such  taxes 
must  be  paid  or  the  tax  title  will  be  void50. 

§194.     Caveat  Emptor. 

The  state  does  not  lose  its  rights  to  lands,  or  estop  itself 
from  claiming  them,  by  taxing  them  to  an  occupier  and 
taking  proceedings  to  enforce  payment  thereof.  Our  laws 
regarding  the  assessment  and  collection  of  taxes  have 
usually  had  regard  to  the  possession  rather  than  to  the 
ownership.  The  township  officer  who  makes  the  assess- 
ment goes  to  no  record  to  inquire  into  the  title;  he  as- 
sumes, and  has  a  right  to  assume,  that  the  occupants  owe 
a  duty  to  the  government,  in  respect  to  his  possession,  and 
he  taxes  him  accordingly;  and  all  of  the  subsequent  pro- 
ceedings by  county  and  state  officers  are  based  upon  this 
assessment,  and  with  no  more  question  usually,  regarding 
the  title,  than  was  made  by  the  assessor.  If  the  state  sells 
for  delinquent  taxes,  it  warrants  nothing  and  represents 
nothing.  The  purchaser  takes  the  risk,  not  only  of  the 

47.  Jenkinson        v.        Auditor      120   Mich.   586;    Wilkin   v.    Keith, 
General.   104   Mich.  34,  37.  121    Mich.   66;    Youngs   v.    Povey, 

48.  Huhbard  v.  Auditor  Gen-      127  Mich.  297. 

eral,  120  Mich.  505.  50.     See     State     Tax     Lands. 

49.  Eldridffe     v.      Richmond.      5197. 


§S  li>5,  11)6  THE  LAW  OF  TAXATION  272 

original  authority  to  tax,  but  also  of  the  regularity  of  all 
of  the  proceedings.  To  entitle  a  party  to  insist  upon  an 
estoppel,  he  must  show  that  the  other  party  has  done  some- 
thing or  represented  something,  which  has  had  the  effect 
to  mislead  and  deceive  him;  and  which  would  render  it 
inequitable  for  the  right  of  such  other  party  to  be  enforced 
against  him.  Taxing  the  land  to  an  occupant  affords  no 
just  ground  for  leading  the  occupant  to  suppose  the  land 
to  be  his  own ;  for  taxation  does  not  imply  ownership  in  the 
person  taxed.  A  tax  deed  gives  no  right  but  such  as  comes 
from  the  proceeding  itself.  The  maxim  caveat  emptor  ap- 
plies to  these  sales51. 

§195.     Surplus. 

The  owner  of  a  certificate  of  sale,  during  the  period  of 
redemption,  is  but  a  lien  holder,  and  is  not  entitled  to  any 
surplus  money  arising  from  a  subsequent  tax  sale  held 
before  his  certificate  ripened  into  an  absolute  title  by  virtue 
of  a  tax  deed.  Such  surplus  belongs  to  the  owner  of  the 
land  who  held  the  legal  title  at  the  time  of  the  tax  sale. 
This  is  a  personal  right  and  does  not  thereafter  follow  the 
title  of  the.  land  so  sold52. 

§196.     State  Tax  Lands. 

Lands,  the  sale  of  which  are  included  in  the  decree  of 
sale,  become  state  tax  lands  even  though  not  offered  for 
sale  by  the  county  treasurer,  and  are  thereafter  subject  to 
private  sale53.  When  these  lands  have  once  been  bid  in  by 
the  state  they  cannot  thereafter,  while  held  by  the  state,  be 

51.  Crane  v.  Reeder,  25  Mich.      Doug.  276. 

303,  320;  Horton  v.  Sailing,  156  53.  C.  L.  §3907;  Mann  v.  Car- 
15  L.  N.  1114.  son,  120  Mich.  631. 

52.  People    v.     Hammond,    1 


I  UK  >ALE  AND  PURC11A  §   I'.'i 

included  in  the  auditor  general's  petition  and  sold  fur  ta 
returned  after  such  prior  sale  to  the  state.  Such  a  sale  is 
void54;  but  if  they  arc  .so  included,  the  decree  cannot  IK-  at- 
tacked collaterally  on  account  thereof85.  If  the  deed  is  void, 
the  lien  to  the  state  for  such  taxes  still  remains66.  These 
lands  need  not  be  re-advertised  at  the  subsequent  annual 
tax  sales,  as  the  provision  requiring  such  advertisement  was 
not  passed  for  the  benefit  of  the  original  owners57.  A  tres- 
passer who  has  cut  timber  upon  these  lands  and  afterward 
purchased  them,  does  not  obtain  title  to  the  timber  he 
formerly  cut68.  The  state  holds  title  to  these  lands  for  the 
state,  county  and  township,  in  proportion  to  the  several 
taxes  due;  and  moneys  collected  for  trespasses  are  to  be 
divided  in  that  proportion69. 

§197.     Purchase  of  State  Tax  Lands. 

The  purchaser  of  these  lands  is  bound,  before  receiving 
his  deed,  to  pay  all  taxes  which  had  become  a  lien  upon  the 
premises;  and  deed  issued  by  the  auditor  general  without 
the  payment  of  such  taxes,  is  void80. 

:>4.     Connecticut,    etc..    Ins.    Co.  GO.     See  §198,  post,  as  to  Re- 

v.   Wood,   155   Mich.  444;  Aztec  demption.      Miller    v.    Meilstrip, 

Copper  Co.  v.  Auditor  General,  144    Mich.   643;    Hughes   v.  Jor- 

128  Mich.  615,  618.  dan,  118  Mich.  27:  Hall  v.  Mann, 

55.  Peninsular     Savings     Bank  122  Mich.  13;  Hubbard  v.  Audi- 
v.  Ward,  118  Mich.  87,  93;  Hoff-  tor  General,  120  Mich.  505;  Con- 
man   v.    Pack,   Wood   &   Co.,   123  ley     v.     Auditor     General,     123 
Mich.  74.  Mich.    83;    Detroit    Ins.    Co.    v. 

56.  Auditor  General  v.  New-  Wood,  118  Mich.  31,  39;  Citizen's 
man,   135  Mich.  288.  Savings    Bank   v.    Auditor   Gen- 

57.  Youngs     v.     Povey,     127  eral,    123    Mich.    511;    in    Wilkin 
Mich.    297;    Garner    v.    Wallace,  v.   Keith,  121    Mich.  Gfi.  7:>.  it  is 
118  Mich.  387,  391.  held  that  a  bill   will  lie  against 

58.  Hickey   v.    Rutledge,    136  the    tax    purchaser   and    auditor 
Mich.  128;  Blake  v.  Grondin,  141  general    to    set    aside    the    deed. 
Mich.  104.  In  this  case,  the  tax  for  the  cur- 

59.  Alcona  Board  v.  Auditor  rent  year  had  not  yet  been  re- 
General,  13fi  Mich.  130.  turned   to   the   county   treasurer 

nun 


§  197  THE  LAW  OF  TAXATION  274 

Statutory  Provisions. 

C.  L.  §3901,  as  amended  by  Act  262  of  Public  Acts 
of  1899  :  "All  lands  heretofore  or  that  may  be 
hereafter  bid  off  to  the  state  for  taxes,  which  have  not 
been  redeemed  or  otherwise  disposed  of,  shall  be  offered 
for  sale  by  the  county  treasurer  at  the  regular  annual 
tax  sale  provided  to  be  held  under  the  provisions  of 
this  act.  The  auditor  general  shall  furnish  to  the 
county  treasurer  in  the  month  of  April  prior  to  the 
month  of  May,  in  the  year  in  which  such  tax  sales  are 
held,  as  provided  in  this  act,  a  statement  of  all  lands 
in  his  county  that  may  have  been  bid  in  for  the  state, 
then  remaining  unredeemed  or  not  otherwise  dis- 
charged. Such  statement  shall  exhibit  the  aggregate 
amount  of  all  sums  due  on  each  description  of  land, 
including  interest  thereon  at  the  rate  of  twelve  per 
cent  per  annum  from  the  first  day  of  the  month  in 
which  the  land  was  bid  in  to  the  state  until  the  first 
day  of  the  month  in  which  said  annual  tax  sale  is  to 
be  held,  as  heretofore  provided  for  by  this  act." 

C.  L.  §3907,  as  amended  by  Act  262  of  Public  Acts 
of  1899 :  "Any  person  may  purchase  any  state  tax 
lands  or  any  state  bids,  at  any  time  except  during  the 
annual  tax  sale  at  the  county  treasurer's  office,  by  pay- 
ing therefor  to  the  auditor  general  the  amount  for 
which  the  same  was  bid  off  to  the  state,  with  interest 
on  the  same  at  the  rate  of  one  per  cent  per  month  or 
fraction  thereof  from  the  first  day  of  the  month  in 
which  such  lands  were  bid  off  to  the  state,  together 
with  the  other  taxes  which  have  been  returned  to  the 

and  it  is  held  that  the  purchaser  such  tax.     The  payment  of  such 

must  either  pay  such  tax  to  the  tax    by    the    owner,    after    such 

local  officers  or  deposit  enough  application  to  purchase,  will  not 

with    his    application    to    cover  make  the   application   good. 


275  THE  SALE  AND  PURCHASERS 

auditor  general  and  remain  a  lien  on  such  lands  at  the 
time  of  the  purchase  so  made,  with  interest  thereon  at 
the  rate  provided  in  this  act :  Provided,  That  purchase 
may  be  made  of  any  state  bid  within  the  period  for 
redemption  without  payment  of  taxes  for  subsequent 
years  as  a  condition  of  purchase,  in  case  the  land  is 
not  held  by  the  state  as  state  tax  land;  but  for  all 
taxes  remaining  unpaid  the  land  shall  be  liable  to  sale 
as  provided  by  section  eighty-five  of  this  act.  Upon 
making  payment  as  above  such  purchaser  shall  be  en- 
titled to  and  receive  a  certificate,  and  a  deed  conveying 
all  the  right,  title  and  interest  of  the  state  to  such  tax 
lands  acquired  or  accrued  by  virtue  of  the  original  sale 
or  sales  to  the  state.  All  provisions  of  law  relative 
to  deeds  executed  by  the  auditor  general  on  the  sur- 
render of  certificates  of  sale  made  by  the  several 
county  treasurers  shall  be  applicable  in  making  deeds 
for  such  purchasers." 

A  prior  void  state  bid  need  not,  however,  be  purchased61 ; 
but  the  lien  should  be  paid  if  the  sale  has  been  cancelled82. 
\Yhere  a  deed  is  issued  by  the  auditor  general  for  a  less 
amount  than  is  required  to  be  paid  under  the  statute,  such 
deed  is  void  even  though  the  reason  is  a  mistake  in  the 
computation  made  by  the  auditor  general.  The  auditor 
general  has  no  authority  to  sell  and  deed  state  lands  ex- 
cept upon  receiving  the  price  prescribed  by  law;  and  this 
the  purchaser  is  bound  to  know68.  In  case  a  deed  issued 

•  •I.  Jennison  v.  Conklin,  114  subsequent  tax  titles  were  fully 

Mich.  9.  paid  for,  but  the  state  will  hold 

c>2.  Auditor  General  v.  Sher-  lien  for  the  unpaid  interest, 

man.  i:t»>  Mich.  157.  Hnrton  v.  Helenholtz  149  Mich. 

63.  Hoffman  v.  Silverthorn.  "227.  In  Horton  v.  Sailing,  15 

137  Mich.  60;  but  where  the  L.  N  1114,  the  county  treasurer 

county  treasurer  makes  a  mis-  computes  interest  at  6%  instead 

take  in  computing  interest,  the  of  12%,  it  is  held  that  the  tax 

deed  will  not  be  void,  where  deed  issued  was  void.  A  bill  in 


$  197  THE  LAW  OF  TAXATION  276 

to  a  purchaser  is  void  for  lack  of  payment  of  the  tax  liens, 
the  holder  of  such  deed  may  compel  the  auditor  general 
to  cancel  such  deed  and  refund  the  money,  or  he  may  pay 
such  tax  liens  and  compel  the  issuing  of  a  new  deed64.  The 
accrued  taxes  need  not  be  paid  by  the  purchaser,  however, 
when  the  lands  are  sold  at  public  sale  by  the  county  treasurer 
under  the  provisions  of  §78 ;  £84  does  not  then  apply,  as  that 
has  reference  only  to  sales  made  by  the  auditor  general, 
after  the  public  sale  held  by  the  county  treasurer65.  Where 
these  lands  are  sold  at  private  sale,  and  the  accrued  taxes 
are  not  paid,  a  valid  deed  for  subsequent  taxes  may  still 
be  given.  The  first  deed,  though  void,  cancels  the  lien  for 
these  taxes,  which,  however,  is  revived  by  setting  the  sale 
aside;  moreover,  such  prior  taxes  may  be  reassessed66.  A 
deposit  of  the  full  amount  due  upon  certain  lands,  together 
with  a  payment  of  all  accumulated  taxes,  entitles  the  payor 
to  a  deed;  but  when  the  deposit  is  insufficient,  it  will  not 
be  applied  upon  the  list  furnished  as  far  as  it  will  go  with- 
out express  authority  from  the  payor  so  to  do67.  If  a 
purchaser  deposits  sufficient  to  pay  the  taxes  adjudged 
against  the  land,  but  does  not  tender  the  accrued  taxes,  it 
is  not  a  legal  offer  to  purchase ;  and  he  may  demand  his 
money  back  rather  than  pay  the  accrued  taxes.  The  county 
treasurer  has  no  right  to  apply  the  money  received  to  the 
payment  of  back  taxes  without  instructions  so  to  do68. 

A  failure  to  pay  the  accrued  taxes  renders  a  deed  void; 
but  if  such  accrued  taxes  are  paid  subsequently  by  the  tax 

equity   is    held    the   proper   pro-  65.     Berkey  v.    Burchard,    119 

ceeding  to  cancel   the  tax  deed  Mich.  101;  Munroe  v.  Winegar, 

(it  being   12   years   old)    and   to  128  Mich.  309. 

compel  auditor  general  to  issue  66.     O'Conner       v.        Auditor 

a   new  deed  to  complainant.  General,  127  Mich.  553. 

64.     Cockburn       v.       Auditor  67.     Hubbard  v.  Auditor  Gen- 
General,   120   Mich.   643:    Conley  eral,  120  Mich.  505. 
v.    Auditor    General,    123    Mich.  68.     O'Donnel     v.     Perrin.    77 
83,  contains  same  principle.  Mich.  173. 


271!  THE  SALK  AM)  PURCHASERS  § 

purchaser,  it  seems  that  he  might  then  have  his  deed 
treated  as  though  issued  at  the  date  of  the  payment  of  such 
accrued  taxes,  subject  to  any  laws  then  in  force69.  Where 
state  tax  land  is  sold  by  the  state,  or  the  county  treasurer, 
and  is  also  sold  for  the  delinquent  taxes  at  the  same  time, 
the  entire  sale  is  subject  to  redemption  under  C.  L.  §3894. 
The  deed  cannot  pass  until  the  usual  period  of  redemption 
expires,  and  meantime  the  right  to  redeem  continues  at  the 
auditor  general's  office.  The  state  tax  has  seen  fit  to  at- 
tach these  conditions  to  the  sale  of  its  state  tax  lands,  and 
the  purchaser  cannot  complain70.  In  case  of  redemption, 
the  purchaser  is  entitled  to  100  ffi  upon  the  purchase  price 
paid  to  the  state,  and  upon  all  accrued  taxes  paid  by  him  at 
the  time  of  the  sale71.  The  deed  will  be  void  if  issued 
before  the  period  of  redemption  expires72. 

Until  a  purchaser  at  a  tax  sale  obtains  a  deed,  no  title 
passes  to  him.  He  cannot  maintain  a  bill  to  quiet  title,  based 
upon  such  certificate,  or  set  it  up  as  a  defense  against  the 
original  owner,  though  he  may  have  been  entitled  to  a  deed 
on  its  presentation  to  the  auditor  general73.  No  title  passes 
by  virtue  of  the  certificate  until  the  deed  issues  thereon,  even 
though  the  time  of  redemption  has  long  passed74.  A  quit 
claim  deed  from  the  holder  of  a  tax  certificate  acts  only 
as  an  assignment  thereof,  and  conveys  no  greater  rights 
than  those  possessed  by  the  grantor75.  An  error  in  a  cer- 
tificate stating  that  the  holder  is  entitled  to  a  deed  at  an 

69.  Church      v.      Smith,      121  kel,    121    Mich.    320:    People    v. 
Mich.  97.  Hammond,  1   Doupr.  276;   Busch 

70.  Monahan  v.  Auditor  Gen-  v.   Nester,  62    Mich.  381,  384. 
eral,  136  Mich.  247.  74.     Irving     v.     Brownell,     11 

71.  Cheever     v.     Flint     Land  111.    402:     Hewitt    v.    Week,   59 
Co.    Lt.,   134   Mich.   604.  Wis.  444. 

72.  Grjffin      v.     Jackson.      145  75.     Boardman    v.    Boozewin- 
Mich.  23.  kel.    121    Mich.    320.   323;    Nitz   v. 

73.  Boardman    v.     Boozewin-  Bolton,   71    Mich.   388. 


§  198  THE  LAW  OF  TAXATION  278 

earlier  date  than  that  fixed  by  the  statute,  is  harmless76. 
A  certificate  of  sale  is  a  cloud  upon  title,  since  the  deed  to 
which  the  purchaser  would  be  entitled  would  presumptively 
convey  a  good  title  to  the  premises  sold77.  A  certificate  of 
sale  issued  to  a  grantee  not  then  living  or  in  existence,  is  a 
nullity78.  Although,  when  land  is  bid  off  to  the  state,  the 
title  in  the  state  becomes  absolute,  yet  on  a  sale  of  the  state 
interest,  a  right  to  redeem  is  again  vested  in  the  original 
owner  until  the  statutory  notice  has  been  served.  The  six 
months  thereafter  has  expired79. 

§198.     Period  of  Redemption. 

It  is  competent  for  the  legislature  to  shorten  the  period 
of  time  for  sale  or  redemption  from  the  time  specified  in 
the  statute  under  which  the  taxes  were  assessed.  The  pro- 
ceeding is  essentially  in  invitium  against  the  delinquent  tax- 
payer, between  whom  and  the  state  there  has  been  no  agree- 
ment as  to  the  period  of  redemption80. 

Statutory  Provisions. 

C.  L.  §3897,  as  amended  by  Act  262  of  Public  Acts 
of  1899  :  "Any  person  owning  any  of  the  lands  sold 
as  aforesaid,  or  any  interest  therein,  may,  at  any  time 
before  the  first  Tuesday  in  May  in  the  year  following 
such  sale,  redeem  any  parcel  of  such  lands,  or  any  part 
or  interest  in  such  lands,  by  showing  to  the  satisfaction 
of  the  county  treasurer  or  auditor  general  that  he  owns 

76.  Muirhead    v.    Sands,    111  Mich.  352;  Ackin  v.    Pillen,   136 
Mich.   487.  Mich.  682;  Allen  v.  Cowley,  128 

77.  Stoddard   v.    Prescott,   58  Mich.   530;  Hickey  v.   Rutledge, 
Mich.  542,  546.  136  Mich.  128. 

78.  Paine     v.     Boynton,     124          80.     See   §215,  post,  Muirhead 
Mich.     194;     Skinner    v.     Grace  v.    Sands,    111   Mich.    487,    492; 
Church,  54  Mich.  143.  Baldwin    v.    Ely,    66  Wis.    171; 

79.  Barcher  v.  Trembley,  140  Negus  v.  Yancey,  22  la.  57. 


.»  TIIK  SAI  I'.   AM)   ITHl  II  \~  !5 

only  that  part  or  interest  in  the  same  which  he  pro- 
poses to  redeem,  by  paying  to  the  county  treasurer  or 
auditor  general  the  amount  of  the  sale  of  the  parcel 
of  land,  or  the  portion  thereof  wished  to  be  redeemed, 
and  interest  thereon  from  the  date  of  such  sale.  Upon 
payment  of  the  redemption  money  and  interest  thereon 
at  one  per  cent  per  month  or  fraction  thereof  to  the 
county  treasurer  as  aforesaid,  "a  redemption  certificate 
is  issued." 

C.  L.  $tf'J59,  as  amended  by  Act  :>()4  of  Public  Acts 
of  1899 ;  Provides  that  no  writ  of  assistance  or  other 
process  for  the  possession  of  any  land  by  virtue  of  a 
tax  deed  until  six  months  after  there  shall  have  been 
filed  with  the  county  clerk  proof  of  service  of  the 
notice  of  purchase  upon  the  persons  entitled  thereto. 

C.  L.  §3960,  as  amended  by  Act  204  of  the  Public 
Acts  of  1899;  Provides,  that  any  grantee  or  grantees 
of  the  last  recorded  deed  or  mortgage  of  the  premises 
in  question,  or  their  assignees  of  record  at  the  time  of 
giving  the  notice,  or  any  executor,  administrator,  heir, 
trustee  or  guardian  of  such  grantee,  mortgagee  or 
assignee,  as  provided  in  §140,  supra,  shall  be  entitled 
to  receive  a  conveyance  of  the  property  at  any  time 
within  six  months  after  service  upon  them  in  the  man- 
ner provided  by  the  act,  of  notice  of  such  tax  pur- 
chase, upon  payment  to  the  tax  purchaser  of  the  amount 
paid  for  such  purchase,  together  with  100^  in  addi- 
tion thereto,  and  the  costs  of  giving  such  notice,  ana 
the  further  sum  of  five  dollars  for  each  description.  It 
further  provides  that  a  reconveyance  to  a  mortgagee 
shall  not  operate  to  convey  title,  but  that  mortgagee 
shall  have  an  additional  lien  for  the  amount  so  paid. 
There  is  no  redemption  at  all  under  the  charter  of  the 


>    l'.»  THE  LAW  OF  TAXATION  280 

city  of  Detroit,  after  the  year  provided  for  has  expired81. 
The  state  may  sell  its  bids  before  the  period  of  redemption 
expires,  at  private  sale,  as  this  is  a  matter  in  which  the 
individual  is  not  concerned82.  Where  state  tax  lands  are 
sold  for  delinquent  taxes  and  at  the  same  time  they  are 
sold  as  state  tax  lands,  the  entire  sale  is  subject  to  re- 
demption83. The  purchaser,  on  redemption,  is  entitled  to 
100<#  upon  the  purchase  price  to  the  state,  and  also  the 
same  percentage  upon  accrued  taxes  paid  at  the  time  of 
purchase84.  While  lands  are  held  by  the  state  upon  its  bid, 
they  cannot  again  be  offered  for  sale  for  taxes  of  subse- 
quent years ;  but  they  may  be  if  the  state  assigns  its  bid85. 
A  purchase  of  state  tax  lands  by  the  original  owner  is  in 
effect  a  payment  and  redemption  of  the  tax.  This  is,  in 
effect,  a  revivor  of  the  right  to  redeem  which  had  once 
expired.  Inasmuch  as  such  a  purchase  is  a  redemption,  it 
is  immaterial  whether  or  not  the  deed  issued  was  legal ; 
the  tax  lien  is  destroyed  and  will  not  be  revived  by  show"- 
ing  that  the  sale  was  void,  as  for  the  non-payment  of  back 
taxes.  The  auditor  general,  therefore,  would  have  no  right 
to  cancel  such  deed  and  again  offer  the  property  for  sale. 
The  reason  for  this  holding  is,  that  it  was  the  selling  officer's 
duty  to  have  informed  such  owner  and  purchaser  of  these 
back  taxes ;  and  that,  the  owner  having  been  misled  by  this 
lack  of  the  proper  performance  of  the  officer's  duty,  will  be 
protected  in  his  attempt  to  clear  up  the  tax  liens86.  The 
auditor  general  is  required  to  transmit  to  the  several 

81.  Schneider  v.   Detroit,  135      of  redemption  valid. 

Mich.   570,  construing  §173,  179,  84.     Cheever    v.     Flint     Land 

181  of  the  Charter  of  1883.  Co.  Lt.,  134  Mich.  604. 

82.  Muirhead    v.    Sands,    111  85.     §61,  Act  206,  Public  Acts 
Mich.  487,  493.  of   1893;    C.    L.    S3884 ;    Connecti- 

83.  Monaghan       v.       Auditor  cut,   etc..   Ins.    Co.   v.    Wood.    11. "i 
General,  136  Mich.  247:  Reed  v.  Mich.  444. 

Auditor  General.  146  Mich.  208.  86.  Hoffman  v.  Auditor  Gen- 
holding  the  six  months  period  eral,  136  Mich.  689,  691. 


Till-:  S.M.K    AM)   I'l   K(  IIASKKS 

c«.unty  treasurers  a  statement  of  all  lands  in  his  county 
still  held  by  the  state  on  its  hid,  and  unredeemed.  Th 
statute  is  directory,  merely  for  the  convenience  of  the 
county  treasurers.  It  was  not  intended  to  give  the  land 
owner  any  greater  rights87.  Neither  the  lands  IK  Id  mi  st;' 
bids,  nor  the  list  of  state  tax  lands,  are  required  to  be  pub- 
lished88. Where  two  parcels  are  sold  as  one,  though  owned 
by  different  persons,  it  affords  no  ground  for  setting  the 
sale  aside;  but  either  party  may  redeem  his  interest  until 
the  May  1st  following  the  sale.  Thereafter,  but  before  the 
expiration  of  the  six  months  notice  given  by  the  purchaser 
at  the  tax  sale,  he  must  redeem  the  entire  parcel  conveyed ; 
he  cannot  redeem  the  portion  alone  which  he  may  have 
owned89.  The  period  of  redemption  provided  in  §§  140. 
141  of  the  Tax  law,  are  contemporaneous  and  must  be  con- 
strued together ;  therefore,  an  owner  of  land  has  six  months 
after  proof  of  the  service  of  the  statutory  notice  has  been 
filed  with  the  country  clerk,  in  which  to  redeem90.  A  pay- 
ment takes  effect  at  the  time  it  is  received  by  the  county 
treasurer  or  auditor  general,  and  not  at  the  time  it  was 
mailed.  Therefore,  where  a  payment  is  mailed  before  the 
period  of  redemption  expires,  but  is  not  received  until  after 
that  period  expires,  it  cannot  be  received91.  When  the 
necessary  sum  has  been  deposited  with  the  register  of  the 
court,  after  notice  of  tax  purchase,  and  such  money  is  paid 
to  the  wrong  holder  of  a  deed,  such  erroneous  payment  will 
save  the  land  from  forfeiture  to  the  holder  of  the  legal  tax 
deed.  The  owner,  however,  will  be  required  so  pay.  the 

87.  C.    L.    §3901;    Garner    v.  Mich.  414:  Adkins  v.  Pillien.  13r> 
W.illacc,  118  Mich.  387.  Mich.     682:     Escanaha     Timber 

88.  Garner    v.    Wallace.     11R  Land    Co.    v.    Rusch.    147    Mich. 
Mich.  :ix7.  619;  Holmes  v.  Loud.  149  Mich. 

89.  Kennedy        v.        Auditor  410. 

(M-iicral.  134  Mich.  534.  91.     Paine     v.     Boynton.     124 

!»o.     Pike    v.    Richardson,    13«       Mich.  194.  197. 


§  198  THE  LAW  OF  TAXATION  282 

valid  tax  deed  holder  his  purchase  price  and  the  statutory 
penalties.  The  rights  of  the  holder  of  the  tax  deed  are 
based  upon  the  provisions  of  a  revenue  statute,  the  general 
principle  and  purpose  of  which  is  to  secure,  by  forced  con- 
tributions, the  funds  required  for  the  government.  If  these 
contributions  are  not  made,  the  property  of  the  citizen  may 
be  sold  for  their  collection.  Such  a  sale  may  be  made  in- 
effectual in  the  hands  of  the  purchaser,  after  notice  of  pur- 
chase, by  payment  to  the  register,  as  provided  by  statute. 
It  is  the  act  of  payment,  in  proper  season,  of  a  proper 
amount,  to  a  designated  officer,  which  operates  to  discharge 
the  land92.  The  statute  enumerates  who  may  redeem  from 
a  tax  purchase,  viz. :  "Any  grantee  or  grantees  under  the 
last  recorded  deed  in  the  regular  chain  of  title,  or  under  tax 
deeds  to  such  lands,  or  any  mortgagee  or  mortgagees  named 
in  all  undischarged  recorded  mortgages,  or  any  assignee 
thereof  of  record  at  the  time  of  giving  said  notice,  or  any 
executor,  administrator,  heir,  trustee  or  guardian  of  said 
grantee,  mortgagee  or  assignee."  It  will  be  noticed  that 
a  number  of  interested  persons  are  omitted  from  this  list, 
such  as  vendees  in  land  contracts,  grantees  and  assignees 
not  of  record  when  the  notice  is  given,  and  persons  whose 
interest  in  the  land  sold  is  not  of  record  and  who  do  not 
derive  their  title  through  heirship.  The  court  has  several 
times  intimated  that  any  person  having  an  ownership  in  the 
land  was  within  the  spirit  of  the  statute  and  ought  to  be 

92.     Act  236  of  Laws  of  1903,  holder  of  the  illegal  tax  holder. 

§141;  Miller  v.  Steele,  146  Mich.  After  the  six  months'  notice  had 

123.      In   this   case,    the    auditor  expired,  the  holder  of  the  legal 

general     had     erroneously     sold  tax  deed  filed  his  petition  for  a 

the  same  parcel  twice,  to  differ-  writ     of     assistance.      The    for- 

ent  purchasers.     Both  gave  the  feiture     was     denied,     but     the 

statutory    notice.       The     owner  owner    was     compelled    to   pay 

paid  the  correct  amount  to  the  over    again    the    purchase    price 

register,  who  paid  it  over  to  the  and  penalties. 


283  THE  SALE  AND  PURCHASERS  §  199 

entitled  to  redeem;  but  it  has  not  directly  passed  upon  the 
question93. 

§199.     Sale  or  Redemption  For  Less  Than  Taxes  Due. 

There  have  been  several  provisions  allowing  real  estate 
returned  delinquent  for  a  series  of  years,  to  be  sold  for 
less  than  the  accumulated  taxes  and  charges.  C.  L.  §1090, 
permitted  such  lands  to  be  sold  for  what  they  would  bring 
after  being  returned  delinquent  for  five  years.  The  loss 
was  home  by  the  state"3*  It  is  immaterial  that  these  taxes 
were  reassessed;  as  in  this  respect  they  are  to  be  treated 
as  of  the  year  they  were  first  placed  upon  the  roll94.  It  is 
competent  for  the  legislature  to  allow  redemption  by  the 
owner  at  a  less  penalty  than  was  provided  in  the  act  under 
which  the  tax  was  assessed95.  The  legislature  may  shorten 
the  time  of  redemption  existing  when  the  tax  was  levied. 
There  is  no  contract  existing  between  the  state  and  the  tax 
payer  as  to  the  time  he  may  redeem.  The  proceeding  t  > 

93.  In  Jackson  v.  Mason,  143  phrase,  "chain  of  regular  title," 
Mich.  355,  the  court  raises  a  see  §403,  post, 
query  as  to  whether  or  not  the  93a.  Auditor  General  v.  M»n- 
vendee  in  a  land  contract,  of  roe  Board,  36  Mich.  70;  Auditor 
record,  was  not  entitled  to  General  v.  Saginaw  Co.,  62  Mich, 
notice.  In  Jakabo.wski  v.  Audi-  579,  holding  Act  160  of  Laws  of 
tor  General  144  Mich.  46,  it  is  1869  prospective,  and  the  loss 
held  that  the  six  months  limi-  occasioned  to  he  the  loss  of 
tations  against  assailing  the  tax  the  state;  Haines  v.  Saginaw 
deed,  after  service  of  the  statu-  Co.,  99  Mich.  32;  Auditor  Gen- 
tory  notice,  do  not  apply  to  the  eral  v.  Ottawa  Co.,  7f  Mich, 
holder  of  an  unrecorded  con-  295;  Auditor  General  v.  Shia- 
tract  of  sale,  not  served  with  wassee  Co.,  74  Mich.  536;  Audi- 
such  notice.  In  Griffin  v.  Jack-  tor  General  v.  Midland  Co.,  84 
son,  145  Mich.  23,  27,  in  dis-  Mich.  121. 

cussing    who    were    entitled    to  94.     §95  of  Act  195  of  Public 
service,    the   court    says:      "We  Acts  of  1889.     Auditor  General 
do   not    mean    to   intimate    that  v.  O'Conner,  83  Mich.  461. 
one  in   privitv  with   the   person  95.     Flint,    etc.,    Ry.    v.   Sag- 
required  to  be   served  may  not  inaw    Co.    Treasurer,    32    Mich. 
have   the   right   to   repurchase."  260. 
As     to     the     construction     the 


§  200  THE  LAW  OF  TAXATION 

collect  taxes  is  essentially  in  invitium,  and  the  proceeding 
on  the  sale  of  the  land  is  'a  remedy  for  the  delinquency  of 
the  tax  payer.  The  law  affecting  the  remedy  is  in  such 
cases  subject  to  amendment,  even  though  the  time  fixed  for 
redemption  be  shortened96.  A  redemption  of  part  of  the 
premises  sold,  where  it  cannot  be  ascertained  what  interest 
was  redeemed,  will  justify  the  auditor  general  in  refusing 
to  execute  a  deed  of  the  remaining  premises97.  Where  the 
statute  permits  it,  a  tenant  in  common  may  redeem  his  in- 
terest from  a  tax  sale  by  paying  his  aliquot  share  of  the 
tax98.  Where  several  parcels  are  assessed  as  one,  and  an 
arbitrary  portion  of  the  tax  is  received  for  one  parcel,  the 
sale  of  the  balance,  under  the  old  procedure,  is  invalid". 

§200.     Refunding  of  Taxes.     By  Owner. 

The  repayment  of  taxes  paid  by  a  defeated  tax  title 
holder  depends  upon  the  statute  in  each  case.  Unless  pro- 
vided by  a  statute,  such  a  holder  of  a  void  tax  title  loses 
what  he  has  paid.  The  statute  has  provided  that  when  such 
a  holder  is  defeated  in  an  action  of  ejectment,  the  payment 
of  such  taxes  as  the  holder  of  the  void  tax  title  paid,  is  a 
condition  precedent  to  entry  of  judgment.  This  provision 
is  constitutional1.  This  provision  applies  to  lands  bid  in  by 
the  state  where  the  state  executed  a  deed  to  the  purchaser, 
whether  they  were  purchased  at  the  annual  tax  sales  and 
their  bids  subsequently  ripened  into  titles,  or  whether  they 
were  purchasers  from  the  state  of  the  titles  bid  in  by  it. 

96.  Muirhead    v.    Sands,    111          99.     Wyman  v.  Baer,  46  Mich. 
Mich.  487    491;   Baldwin  v.  Ely,      418. 

66  Wis.   171:   Negus  v.   Yancey,  1.     H.  S.  §1167;  Beard  v.  Shar- 

22  la.  57.  rick,    67    Mich.    321;    Sinclair    v. 

97.  Kneeland        v.        Auditor  Learned,  51   Mich.  335-  Connecti- 
General,  113   Mich.  63.  cut,  etc.,  Ins.  Co.  v.  Wood,  115 

98.  Holbrook      v.     Treasurer  Mich.     444,     453;     Croskery     v. 
of  Detroit.  8  Mich.  14.  Pusch. 


Till.  SALE  AND  IT  Ri'H.  \SERS  i  :.'<••• 

The  title  must  be  adjudged  against  the  defendant  before  he 
can  enforce  a  lien  upon  the  premises  for  the  taxes  paid,  and 
the  right  to  prosecute  or  litigate  the  claim  for  subsequent 
taxes  is  postponed  until  the  rendition  of  judgment,  and 
then  a  supplimentary  proceeding  must  be  instituted  on  the 
equity  side  of  the  court.  The  statute  of  limitations  does 
not  apply  to  this  lien,  since  at  any  time  when  a  plaintiff 
has  recovered  in  an  action  of  ejectment,  the  defendant  may 
still  have  a  lien  upon  the  land  for  legal  taxes2.  Under  the 
late  tax  law,  the  money  shall  be  refunded  if  the  sale 
has  been  in  contravention  of  the  provisions  of  the  tax  law8. 
Under  this  provision  a  purchaser  need  not  wait  to  be  de- 
feated in  an  action,  but  may  set  up  the  illegality  of  the  sale 
and  compel  the  auditor  general  to  refund  the  money  paid, 
by  mandamus4.  So,  also,  as  a  condition  precedent  to  setting 
the  decree  aside  on  a  petition,  the  owner  will  be  required 
to  refund  the  taxes  paid5.  But  where  the  holder  of  the  tax 
title  has  entered  the  premises  without  giving  the  statutory 
notice,  he  is  a  trespasser,  and  cannot  recover  either  his  pur- 
chase price,  or  taxes  paid,  or  the  value  of  his  improvements 
made6.  The  owner  will  not  be  compelled  to  refund  a  void 
purchase,  where  he  has  subsequently  made  a  valid  purchase 
of  the  same  tax7.  Where  an  owner  pays  to  the  register  of 
the  court  the  amount  demanded  by  him,  to  redeem  a  tax 

2.  Tillotson  v.  Circuit  Judge,       122  Mich.  151. 

!>7    Mich.  .~>8.-»,  r>88:   Ellsworth   v.  6.     Aztec  Copper  Co.  v.  Audi- 

Krecman.  43  Mich.  488;  Weimer  tor  General,  128  Mich.  515,  620: 

v.  Porter,  42  Mich.  569;  Balfour  Connecticut,     etc.,     Ins.     Co.     v. 

y.  Whitman,  89  Mich.  202.  where  Wood.  115  Mich.  444,  454. 

it  is  held  that  a  grantee  under  6.     Corrigan    v.    Hinkley,    125 

a    warranty   deed    can    only   re-  Mich.  25;   Cook  Land  Co.,  etc., 

cover  for  legal  taxes  paid,  wfierc  v.  McDonald,  15  L.  N.  953. 

his  deed  is  defeated.  7.     Miller     v.    Meilstrup.     144 

3.  Sub.   3,   898;   C.   L.   3921.  Mich.  643. 

4.  Gurd    v.    Auditor   General. 


§201  THE  LAW   OF  TAXATION  286 

purchase,  the  owner  will  be  protected  through  the  register, 
by  mistake  demands  and  receives  an  insufficient  amount8. 

§201.     Cumulative  Tax  Titles. 

Until  provided  by  statute,  no  holder  of  a  tax  title  could 
set  up  a  number  of  tax  titles  against  the  original  owner, 
acquiring  such  titles  by  permitting  the  land  to  be  sold  for 
delinquent  taxes  after  taking  possession  of  the  same.  The 
reason  of  this  rule  has  its  foundation  in  the  obligation  of  a 
person  to  pay  taxes  on  property  in  his  possession  and  which 
he  professes  to  own.  Under  the  reason  of  this  rule,  a  per- 
son may  bid  in  a  second  tax  title  before  the  period  of  re- 
demption has  expired  on  the  first,  and  rely  upon  both,  since 
he  was  under  no  obligation  to  pay  any  taxes  until  some  title 
had  ripened*. 

8.     O'Connor     v.     Gottschalk,  leaving  the  sum  specified  in  the 

148    Mich.    450,    following    prin-  notice   With   the   register  of  the 

ciple    in    §153,    supra,    as    to    a  county,  acts   as  a  payment, 

certificate    being    payment,    Es-  9.     Tweed  v.  Metcalf,  4  Mich, 

canaba    Timber    Land     Co.     v.  579.    587:     Lacey     v.     Davis,     4 

Rusch,   145   Mich.   1,   holds   that  Mich.  140. 


CHAPTER  XII. 
THE  DEED  AND  ITS  INCIDENTS. 


5202.  Execution 

§203.  Recitals 

!L'04.  Description. 

5205.  Validity 

5206.  Operation. 

5207.  Title  that  Passes. 

5208.  Effect  of  Tax  Sale  under  Old  Law. 

5209.  Presumptions  from  Deed. 

5210.  Who  May  Attack  Deed. 

5211.  Lien  by  Void  Tax  Title  Holder. 

5212.  Reimbursement  of  Defeated  Purchaser. 

5213.  Reimbursements  for  Improvements. 


§202.     Execution. 

The  tax  deed  may  be  executed  by  the  deputy  auditor  gen- 
eral, as  deputy1.  Inasmuch  as  the  statute  authorizing  the 
sale  of  lands  for  delinquent  taxes  is  in  derogation  of  the 
common  law,  it  will  be  construed  strictly;  and  unless  it  ex- 
pressly authorizes  the  giving  of  a  deed,  the  authority  so  to 
do  will  not  be  inferred  from  a  power  to  sell2. 

£203.     Recital. 

It  is  unnecessary  that  the  deed  recite  the  various  pro- 
ceedings, as  such  recitals  would  not  be  evidence  in  any 

1.  Westbrook    v.     Miller,    56  fore   the    period    of   redemption 
Mich.     148,     151;     Drennan     v.  has  expired  will  be  held  abso- 
Herzog,  56   Mich.  467;   Fells  v.  lutely   void,   Fitschen    v.   Olsen. 
Harbour,  58  Mich.  49.  15  L.  N.  1010 Mich ; 

2.  Sibley    v.  Smith,    2  Mich.  Morse   v.   Auditor  General,   143 
487,    490;    Lemon    v.    Chunn,    1  Mich.  610. 

Blackf.  336;  a  deed  executed  be- 


THE  LAW   OF  TAXATION  288 

• 

case,  unless  made  so  by  statute.  Where  the  form  of  the 
deed  is  not  prescribed,  it  need  not  recite  more  than  the 
capacity  in  which  the  auditor  general  acted3.  Any  convey- 
ance that  conforms  to  the  statutory  requirements  of  a  quit 
claim  deed  will  be  sufficient  to  pass  the  title  of  the  state. 
No  greater  formality  is  required  in  making  a  deed  by  the 
state  than  between  individuals4.  In  determining  whether 
the  deed  is  sufficient  it  may  be  construed  in  connection 
with  the  entire  tax  record5.  Where  a  tax  deed  has  been 
lost,  and  a  second  deed  is  issued  in  its  place,  the  loss  or 
destruction  of  the  first  deed  together  with  its  date  if  pos- 
sible, must  be  recited  in  the  second  deed.  Unless  the  new 
deed  contains  such  statutory  requirements,  it  will  constitute 
no  evidence  of  title6.  A  recital  in  a  tax  deed  that  a  sale 
was  made  on  a  certain  date  will  not  preclude  the  purchaser 
from  showing  that  it  was  made  at  a  different  dat^'. 

§204.     Description. 

The  description  of  lands  for  taxation  has  been  heretofore 
discussed8.  It  is  not,  however,  necessary  that  the  descrip- 
tion in  the  deed  agree  with  the  description  on  the  roll ;  part 
of  the  land  may  have  been  redeemed,  or  the  tax  paid 
thereon9.  If  the  description  in  the  tax  deed  is  bad,  the 
deed  is  void;  and  the  party  holding  the  deed  will  not  be 
entitled  to  recover  for  his  improvements10.  Where  there  is 
a  conflict  between  the  tax  record  and  the  certificate  of  sale, 
the  former  will  prevail.  Should  the  deed  purport  to  con- 

3.  Sibley    v.  Smith,    2    Mich.  7.     Lacey    v.    Davis,    4    Mich. 
487,  497.  140,   155. 

4.  Dawson      v.      Peter,      119  8.     See    Description    of    Land 
Mich.  274,  279;  Mann  v.  Carson,  on  roll.  §81-84. 

120  Mich.   631,  637.  9.     Amberg      v.       Rogers,     9 

5.  Garner     v.     Wallace,     118      Mich.  332,  337. 

Mich.  387,  391.  10.     King  v.   Potter,  18   Mich. 

6.  Burroughs      v.      Goff,      64       134,   140. 
Mich.   464,  468. 


THE  DEED  AND  ITS  INCIDENTS  §  205 

vey  more  land  than  was  sold,  it  will  not  be  entirely  void, 
but  may  be  corrected  by  a  decree  of  the  court11.  Where 
one  tax  deed  conveys  an  undivided  three-fourths  of  certain 
premises,  and  another  an  undivided  one-half  of  the  same 
premises,  it  does  not  necessarily  follow  that  the  entire  title 
has  been  conveyed12. 

§205.     Validity. 

It  is  beyond  the  power  of  the  legislature  to  make  a  tax 
deed  conclusive  evidence  of  title  in  fee  simple13.  The  statute 
of  necessity  determines  the  nature  of  the  title  conveyed  by 
a  valid  sale  and  deed,  viz.,  an  absolute  title  in  fee  subject 
to  subsequent  taxes.  The  intent  of  such  a  provision  must 
be  deemed  to  be  that  such  deed  should  be  evidence  of  title 
in  fee  simple  after  the  right  to  give  the  deed  has  been 
shown  by  a  valid  decree.  The  deed  itself  is  not,  under  such 
a  provision,  prima  facie  evidence  of  a  conveyance  of  title14. 
Declaring  tax  titles  conclusive  is  no  new  thing  in  legisla- 
tion. The  legislature  has  repeatedly  undertaken  to  give 
greater  force  to  tax  deeds  than  could  legally  be  sanctioned. 
But  the  attempt,  though  unsuccessful,  was  never  supposed 
to  affect  the  whole  tax  law15.  As  early  as  1827,  the  Terri- 
torial legislature  provided  that  after  a  period  of  two  v^r-s 
for  redemption,  the  treasurer  should  execute  a  deed  to  the 
purchaser  which  should  give  an  absolute  estate  in  fee  sim- 
ple, and  be  conclusive  evidence  that  the  sale  was  regular18. 
The  legislature  also  provided  that  no  one  should  question 

11.  Knecland     v.     Hull,     lift          15.     State    Tax    Land    Cases. 
Mich  55.  54     Mich.     367;     Grossbeck     v 

12.  Laird  v.  Coach,  112  Mich.  Seeley,  13  Mich.  329:  McKinnon 
r,2R.  v.   Meston,   104   Mich.  642;   Ball 

13.  See  §210.  post.  v.  Ridge  Copper  Co.,  118  Mich. 

14.  Taylor    v.    Deveaux,    100  7;   O'Connor   v.    Carpenter.    144 
Mich.  581;  Dawson  v.  Peter,  119  Mich.  240. 

274,   275.  16.     Laws  of  1827,  p.  370. 


§  205  THE  LAW  OF  TAXATION  290 

the  validity  of  a  tax  deed  unless  such  person's  title  was  ac- 
quired from  the  state  or  the  United  States,  thus  attempting 
to  make  it  impossible  for  a  party  holding  by  adverse  posses- 
sion, or  whose  chain  of  title  was  defective,  from  question- 
ing or  opposing  a  tax  deed.  Titles  in  this  state  are  sup- 
posed to  have  been  granted  or  originally  recognized  and 
confirmed  by  the  United  States  or  by  this  state ;  and  it  must 
follow  that  when  one  produces  such  evidence  as  raises  a 
presumption  of  title  in  him,  according  to  the  settled  rules 
of  law,  this  presumption  must  be  sufficient  to  bring  the 
case  within  the  protection  of  the  statute,  because  title  in  a 
private  person  supposes  a  grant  from  the  state  or  sovereign 
power.  When  the  law  raises  such  a  presumption,  this  nega- 
tives, because  inconsistent  with,  any  supposition  that  tin- 
government  has  never  conveyed,  or  that  having  conveyed, 
some  other  person  holds  under  its  grant.  This  view  leaves 
ample  scope  for  the  operation  of  the  statute  in  cases  where 
it  would  be  entirely  equitable.  A  mere  intruder  or  tres- 
passer on  unoccupied  lands  might  well  be  precluded  from 
contesting  any  prime  facie  title  of  another,  and  so  might 
one  who  should  attempt  to  defend  under  an  outstanding 
title  with  which  he  is  in  no  way  connected.  It  cannot  be 
supposed  that  the  statute  was  intended  to  go  further  than 
to  embrace  these  cases  and  others  resting  upon  similar  rea- 
sons. It  certainly  cannot  embrace  the  title  of  one  who 
shows  a  prime  facie  title,  sufficient  under  common  law 
rules17.  Inasmuch  as  the  right  of  the  state  to  sell  is  founded 
solely  upon  the  non-payment  of  the  tax,  such  right  cannot 

17.     C.   L.   1871,  §1130;   H.  S.  such  a  statute  could  be  invoked 

§1166;  Gamble  v.'Horr,  40  Mich.  against   the   purchaser   of  logs; 

561,  564;   Maxwell  v.   Paine,   53  Raber  v.   Hyde,   138   Mich.   101. 

Mich.   30;   Rogers   v.  White,  68  holding  that  the  statute  applied 

Mich.   10;   Hoffman   v.   Loud   &  as   against   the   owner   of   logs; 

Sons,  138  Mich.  5,  holding  that  Day  v.  Alverson,  9  Wend.  223. 


'•"•'I  THE  DEED  AND  ITS  INCIDENTS  §  206 

exist  whenever  the  tax  has  been  paid,  and  a  deed  would 
convey  no  estate  or  title  whatever  under  these  circum- 
stances18. A  tax  deed  for  taxes  of  several  years  is  valid 
if  all  of  the  taxes  for  one  year  of  the  included  years  is 
valid19.  Where  one  tax  deed  has  been  issued,  void  for  the 
non-payment  of  accrued  taxes,  a  valid  deed  based  upon  sub- 
sequent taxes,  may  be  issued.  No  lien  exists  for  the  first 
taxes  until  the  void  deed  is  set  aside20. 

Statutory  Provision. 

C  L.  §3895  provides,  for  the  giving  of  a  deed  by  the 
auditor  general  or  his  deputy  unless  the  sale  for  taxes 
shall  have  been  redeemed  or  annulled  as  provided  by 
law,  that  "Such  deeds  shall  convey  an  absolute  title  to 
the  land  sold,  and  "be  conclusive  evidence  of  title,  in 
fee,  in  the  grantee,  subject,  however,  to  all  taxes 
assessed  and  levied  on  such  lands  subsequent  to  the 
taxes  for  which  the  same  was  bid  off." 

§206.     Deed.     Operation. 

One  in  possession  of  land  claiming  title,  unless  with 
statutory  permission,  can  acquire  no  additional  interest  by 
suffering  the  land  to  be  sold  for  taxes,  if  such  taxes  were 
a  lien  at  the  time  he  took  possession.  It  is  immaterial  that 
the  taxes  were  assessed  to  some  other  person  as  non-resi- 
dent21. Though  a  person  cannot  acquire  a  cumulative  title 
to  land  by  allowing  it  to  be  sold  for  taxes  after  he  has 

18.     Rayner  v.   Lee,  20  Mich,  upon  the  validity  of  a  tax  title. 

384:  Rowland  v.  Doty,  Har.  Ch.  19.     Hunt  v.  Chapin,  42  Mich. 

3,    8;    Waldby    v.    Callender,    8  24. 

Mich.    430;    Quinlan    v.    Rogers.  20.     O'Connor       v.       Auditor 

12   Mich.    168.     These   last   two  General,   127   Mich.  553. 

cases   hold    that   it   is   unconsti-  21.     Lacey   v.   Davis,  4  Mich, 

tutional  to  provide  that  a  circuit  HO,  153. 
court  commissioner  may  decide 


S  200  THE  LAW   OF  TAXATION  J!f> 

taken  possession,  he  may  have  the  benefit  of  a  purchase 
made  before  the  period  of  redemption  of  the  first  purchase 
has  expired22.  A  tax  deed,  though  void,  creates  color  of 
title,  and  is  admissible  to  show  the  extent  of  the  holder's 
claim23.  The  deed  does  not  relate  back  to  the  sale,  or 
expiration  of  the  period  of  redemption,  so  as  to  make  par- 
ties upon  the  land  trespassers  before  the  deed  actually 
issued,  though  it  might  support  an  action  for  waste24.  The 
right  to  such  a  deed  cannot  be  set  up  as  a  defense  before 
the  deed  actually  issued25.  Such  a  deed  will,  however,  re- 
late back  for  the  purpose  of  doing  substantial  justice,  as 
treating  a  payment  by  an  attorney  as  though  made  by  a 
client,  though  the  deed  is  not  transferred  to  the  client  at 
the  time26.  A  tax  lease,  given  under  the  charter  of  Detroit, 
begins  to  run  when  the  period  of  redemption  expires27.  A 
valid  tax  deed  cuts  off  all  prior  liens  for  taxes  held  by  third 
parties28.  The  placing  of  tax  deed  upon  record  is  such  an 
assertion  of  hostile  title  that  ejectment  will  lie29.  When 
the  auditor  general  issues  a  deed  before  the  period  of  re- 
demption has  expired,  such  deed  is  void  on  its  face.  The 
lapse  of  time  will  not  make  it  valid30.  So,  when  the  auditor 
general  issues  a  deed  for  a  less  amount  than  is  required 
by  statute,  the  deed  will  be  void81. 

22.  Tweed      v.      Metcalf,      4  27.     Murphy    v.     Campau,    3.1 
Mich.  579,  587.  Mich.  71. 

23.  Hoffman    v.    Harrington,  28.     Robbins     v.     Barren,     32 
28   Mich.  90.  Mich.  36. 

24.  Hess  v.  Griggs,  43  Mich.  29.     La    Coss   v.    Wadsworth, 
397;     Hemingway    v.  Drew,    47  56  Mich.  421;  Hoyt  v.  Southard, 
Mich.   554;    Busch  v.   Nester,  62  58  Mich.  432;  Goodman  v.  Nes- 
Mich.    281;    Sherman   v.    Fisher,  ter,   64    Mich.    662;    Tillotson   v. 
138   Mich.  391.  Webber,  96   Mich.   145. 

"25.     Boardman    v.    Boozewin-  30.     Griffin     v.     Jackson,     145 

26.     Connecticut,  etc.,  Ins.' Co.  Mich.  23. 

kel,   121  Mich.  320.  31.     Monaghan  v.  Auditor  Gen- 

v.  Bulte,  45  Micfi.  113.  eral,  136  Mich.  247. 


THE  DEED  AND  ITS  INCIDENTS  §  '.'O7 

§207.     Title  That  Passes. 

Every  tax  sale  under  our  laws  is  a  sale  of  the  complete 
title,  and,  if  legal,  when  it  matures  takes  precedence  of  all 
other  titles32.  When  the  lien  given  by  the  statute  is  fore- 
closed by  the  court  in  chancery,  the  evident  purpose  is  to 
convey  to  the  state  or  to  the  private  purchaser,  the  abso- 
lute title  in  fee;  a  title  which  completely  destroys  the  orig- 
inal one.  It  is  of  no  significance  that  the  state  does  not 
bid  in  the  land  for  speculative  purposes,  or  that  it  acquires 
no  possessory  rights  therein,  or  that  it  remains  liable  to 
taxation  for  successive  years.  When  the  lien  is  foreclosed, 
the  land  sold,  and  the  time  of  redemption  expired,  the  state 
or  the  purchaser  owns  the  complete  title  of  the  land,  or 
it  owns  nothing.  The  law  may  preserve  the  lien  in  case 
the  title  is  held  void,  but  that  does  not  affect  the  quantity 
of  the  land  conveyed,  which  is  the  entire,  or  nothing33. 
Under  the  charter  of  Detroit,  the  controller  may  bid  off 
lands  within  the  city  offered  for  delinquent  taxes,  and  cer- 
tificates be  issued  by  him  to  the  corporation.  Such  a  sale 
and  purchase  by  the  city  vests  the  title  in  the  municipality : 
the  city  authorities  are  under  no  obligation  to  allow  any 
redemption  after  the  year  provided  by  the  charter34.  As 
between  the  state  and  the  original  owner,  the  title  to  lands 
sold  for  the  non-payment  of  taxes  becomes  ar-so!"te  i"1  th° 
state  on  a  regular  sale.  It  is  true  that  as  to  the  original 
owner  there  is  a  subsequent  right  to  redeem,  upon  a  sale 
of  the  state's  interest,  upon  payment  of  double  the  amount 

32.  Westbrook   v.    Miller,   64  v.  Wood,  115  Mich.  444,  448. 
Mich.  129;  Toolan  v.  Longyear,  34.     Gray      v.      Detroit,      113 
144  Mich.  55;  Sinclair  v.  Learned  Mich.  657;  Schneider  v.  Detroit, 
51  Mich.  344;  Dawson  v.  Peter.  135       Mich.       570;       construing 
119    Mich.    274;    Taylor    v.    De  585173,    179,   181.   of   Charter   of 
veaux,  100  Mich.  581.  1883,  of  Detroit. 

33.  Connecticut,  etc.,  Ins.  Co. 


§  207  THE  LAW  OF  TAXATION  .".'1 

of  taxes,  and  costs,  and  a  penalty,  after  notice.  Where 
the  original  owner,  before  having  received  the  notice  of 
tax  purchase,  and  consequently  during  his  period  of  re- 
demption, conveys  the  premises  to  the  tax  title  purchaser, 
the  tax  title  and  the  original  title  merge;  and  an  adverse 
occupant  will  be  entitled  to  pay  for  his  improvements.  Such 
claim  will  not  be  out  off  by  the  tax  title35.  Where,  how- 
ever, the  purchaser  of  a  subsequent  tax  title  acquires  the 
original  title,  a  prior  tax  purchaser  cannot  claim  that  as 
to  himself  his  tax  title  cut  off  the  original  title,  but  that 
as  to  the  subsequent  tax  purchaser  the  original  title  merged 
with  that  title,  in  effect,  destroying  the  subsequent  title 
and  leaving  the  prior  tax  title  valid.  If  the  original  tax 
title  was  destroyed  by  the  prior  tax  purchase,  it  was  de- 
stroyed as  to  both  tax  purchases.  In  other  words,  a  prior 
tax  purchaser  cannot  set  up  the  doctrine  of  merger  against 
a  subsequent  tax  purchaser36.  The  state  holds  title  to  these 
lands  in  trust  for  the  state,  county  and  township,  in  propor- 
tion to  the  several  taxes  due37.  A  purchaser  takes  all  of 
the  title;  but  if  the  deed  from  the  state  conveys  a  greater 
interest  than  the  state  had  to  sell,  that  deed  is  void,  but  the 
purchaser  will  be  entitled  to  a  new  deed  for  the  correct 
interest  that  was  sold88.  When  the  state  gives  a  tax  deed, 
it  parts  with  all  of  its  title  and  cannot  thereafter  assert  a 
lien  for  taxes  prior  to  those  sold,  unless  such  lien  is  ap- 
parent to  the  purchaser.  This  rule  is  one  of  necessity  since 

35.  Hickey   v.    Rutledge,   136      Mich.  643. 

Mich.   128;    Robbing   v.   Barren,  37.     Alcona  Board  v.  Auditor 

32    Mich.    36;    Allen    v.    Cowley,  General,  136  Mich.  130. 

128  Mich.  530;  Boucher  v.  Trem-  38.     Harding  v.  Auditor  Gen- 

bley,  140  Mich.  352.  eral,  140  Mich.  646. 

36.  Miller    v.    Meilstrup,    144 


•-'.'"•  TIIK  DKKD  AM)  ITS  1\C1I>KXTS  §  «j  ^08,  209 

individuals  would  be  loath  to  purchase  tax  lands  if  they 
could  not  be  certain  what  such  lands  would  cost  them". 

§208.     Effect  of  Tax  Sale.     Old  Law. 

Prior  to  the  adoption  of  the  law  foreclosing  a  tax  lien 
in  chancery,  it  was  held  that  all  material  requiicments  of 
the  tax  laws  must  be  complied  with.  The  lawful  power 
to  sell  in  these  cases  is  a  power  to  sell  so  much  only  as  is 
sufficient  to  pay  such  taxes  as  the  law  has  authorized.  It 
was  not  a  case  of  mere  excess  in  the  execution  of  the  power 
by  the  officer  intrusted  with  it;  for  he  could  not,  if  he 
would,  sell  for  the  legal  taxes  alone.  He  is  bound  to  sell 
for  the  amount  reported  due,  however  much  is  illegal.  Any 
statute  which  attempted  to  provide  for  a  sale  of  lands  for 
illegal  taxes  was  held  unconstitutional40.  The  statute  does 
not  limit  the  amount  of  land  that  may  be  sold  for  taxes41. 

§209.     Presumptions  From  Deed. 

Under  the  code  of  1827,  the  deed  was  only  presumptive 
evidence  of  the  regularity  of  the  sale.  The  land  owner 
could  rebut  this  presumption.  Under  that  law  the  deed 
was  jiot  printa  facie  evidence  of  the  regularity  of  the  taxes, 
but  only  of  the  regularity  of  the  sale43.  Owing  to  the 
strict  construction  of  that  statute  by  the  courts,  and  the 
constitutional  bar  against  taking  private  property  without 
giving  the  owner  an  opportunity  to  be  heard,  the  legisla- 

39.  Auditor   General    v.    Clif-  declared     that     the     tax      <!<•,, I 
ford,    143     Mich.    626;    Auditor  should    be   conclusive    evid 
General   v.   Newman,   135   Mich.  of    title    in     fee.       Rowland     v. 
288.  Doty  Har.  Ch.  3,  9;  Latimer  v 

40.  Silsbee     v.     Stockle,     44  Lovett,   2    Doug.   204:   Scott   v. 
Mich.     561,     567;     C.     L.     1871,  Detroit    Youne    Men's    Soc.,    1 
§1129.  Doug.  119,  152;  Ives  v.  Kimball, 

41.  Tweed  v.  Metcalf,  4  Mich.  1   Mich.  308,  317;  Farmers,  etc.. 
579,    601;     Sibley    v.     Smith,    2  Rank  v.  Bronson,  14  Mich.  361. 
Mich.  486.  373. 

42.  C.  L.  53895.    This  statute 


§  209  THE  LAW  OF  TAXATION  296 

ture,  in  1843,  made  a  tax  deed  priina  facie  evidence  of  the 
regularity  of  all  of  the  tax  proceedings  to  the  date  of  the 
sale.  It  was  competent  for  the  legislature  to  make  this 
change  and  throw  the  burden  of  proof  upon  the  tax  payer43. 
The  effect  of  such  a  provision  is  to  change  the  burden  of 
proof  to  the  party  claiming  against  the  tax  title,  and  to 
raise  the  presumption  that  everything  has  been  done  which 
was  competent  to  be  done  under  the  statute,  to  render  the 
sale  of  the  land  described  in  the  deed  a  valid  sale ;  in  other 
words,  if  any  proceedings  might  have  been  had  under  the 
statute  which  would  authorize  the  sale  of  the  land  described 
in  the  deed,  they  must,  until  a  reasonable  presumption  to 
the  contrary  has  been  raised  by  proof,  be  presumed  to  have 
been  taken  in  accordance  with  the  statute.44.  Where  a  tax 
deed  is  invalid  upon 'its  face,  the  presumption  of  regularity 
does  not  apply.  The  legislature  did  not  intend  to  say  that 
a  paper,  void  on  its  face,  should 'be  prima  facie  evidence  of 
regularity;  as  where  the  deed  was  given  under  the  law  of 
1882,  which  law  was  not  retroactive,  for  taxes  of  188145. 
A  provision  that  a  tax  deed  "shall  convey  an  absolute  title 
to  the  land  sold  and  be  conclusive  evidence  of  title  in  fee 
simple  in  the  grantee,"  is  construed  to  mean  that  such  deeds 
shall  be  evidence  of  title  in  fee  simple  after  the  right  to  give 
the  deed  had  been  shown,  by  proof  of  a  valid  decree.  The 
statute,  of  necessity,  determines  the  nature 'of  the  title  con- 
veyed by  a  valid  sale  and  deed,  viz.,  an  absolute  title  in  fee 
simple,  subject  to  subsequent  taxes.  It  is  not,  however, 

43    Sibley    v.    Smith,    2    Mich.  struing   C.    L.   1871   §1057,   1091; 

487,  496.  Hunt    v.   Chapin,    42    Mich.    24; 

44.     Amberg     v.      Rogers,     9  Stockle  v.  Silsbee,  41  Mich.  615, 

Mich.  332,  338;  Lacey  v.  Davis,  construing  C.  L.  1871,  §477,  Sub. 

4  Mich.  140;  Wright  v.  Denham,  155;  Connecticut,  etc.,  Ins.  Co.  v. 

13    Mich.   414,    construing    §108  Bulte,  45   Mich.  113. 

R.    S.    1846.      Case    v.    Dean,   16  45.     Ball   v.   Busch,   64    Mich. 

Mich.  12.  20;  Blackwood  v.  Van  336. 
Vleit,   30    Mich.    118,    120,    con- 


297  THE  DEED  AND  ITS  1  NCI  I  HINTS  §  '-1° 

within  the  power  of  the  legislature  to  deny  the  right  to 
defend  against  tax  titles46.  The  court  has  used  some  lan- 
guage intimating  that  a  tax  deed  issued  under  the  laws  of 
1882,  and  subsequent  years,  was  not  priina  facie  evidence 
of  title  until  a  right  to  enter  a  valid  decree  of  sale  was 
shown47.  The  policy  of  the  state,  since  1843,  has  been  to 
offer  better  inducements  to  tax  purchasers,  and  has  been 
continually  changing  the  statutes  in  an  effort  to  make  tax 
deeds  more  effective.  The  intimation  that  Act  No.  7  of 
the  Public  Acts  of  1882,  took  away  the  value  of  tax  deeds 
as  pritna  facie  evidence  of  the  legality  of  the  proceedings 
is  consistent  with  the  long  settled  policy  of  the  state;  and 
in  the  absence  of  an  express  declaration  in  the  statute,  to 
that  effect,  the  court  will  not  so  construe  it.  Therefore,  a 
tax  deed  is  prima  facie  evidence  of  title  in  the  holder,  un- 
less something  appears  upon  the  face  of  the  deed  itself 
which  shows  that  it  is  void48.  A  deed  from  the  state,  of 
state  homestead  lands,  is  not  conclusive  evidence  of  title, 
and  is  not  prima  facie  evidence  until  the  validity  of  the 
prior  sales  to  the  state  are  shown49. 

§210.     Who  May  Attack. 

The  placing  of  a  tax  deed  upon  record,  or  the  asserting 
of  any  claims  thereunder,  permits  the  real  owner  to  bring 

46.  Taylor    v.    Deveaux,    100      in  to  the  state  prior  to  the  passage 
Mich.   481;    McKinnon   v.   Mes-      of  that  act. 

ton,    104    Mich.    642,    construing          48.     Hoffman  v.  Loud  &  Sons, 

3,  H.  S.  §1170g6.  138    Mich.    5,    being    a    reargu- 

47.  Norris  v.  Hall,  124  Mich,  ment  of  the  same  case  reported 
170;  Dawson  v.  Peter,  119  Mich,  in  111  Mich.  156.     In  this  case. 
274,  277.    This  intimation  is  not  the    court    over-rules    any    case 
denied   in    Hoffman    v.    Loud    &  from  which  a  contrary  inference 
Sons.    138    Mich.    5.    the   court  might      be     drawn.       Lever     v. 
there     making     the     distinction  Grant,  139   Mich.  277. 

that  Act  No.  7  of  Public  Acts  of  49.  Morse  v.  Auditor  Gen- 
1S82  did  not  apply  to  lands  hid  eral,  143  Mich.  610. 


§§  211,  212  THE  LAW  OF  TAXATION  298 

ejectment50.  But  a  deed  issued  pursuant  to  a  decree  can- 
not be  collaterally  attacked51.  The  party  assailing  the  same 
must  have  some  interest  in  the  property  covered  by  the  tax 
deed.  A  trustee,  who  holds  under  a  void  deed,  has  ho  such 
interest;  as  where  a  wife  did  not  join  in  a  conveyance  to 
him  of  a  homestead82.  Nor  will  a  bill  lie  by  one  not  in 
possession  to  declare  the  holder  of  a  tax  title  a  trustee83. 
A  trespasser  cannot  set  up  the  invalidity  of  the  tax  titles 
under  H.  S.  §1166  (Act  169  of  Laws  of  1869,  §164).  Act 
No.  11  of  Public  Acts  of  1882,  did  not  repeal  this  pro- 
vision84. 

§211.     Lien  by  Void  Tax  Title  Holder. 

Where  a  purchaser  of  a  void  tax  title  is  defeated  in  his 
title  by  a  court  of  competent  jurisdiction,  the  statute  may 
provide  a  lien  to  such  defeated  purchaser  for  all  legal  taxes 
paid  by  him.  It  may  provide  that  such  taxes  shall  be  re- 
paid as  a  condition  precedent  to  entering  judgment  in  eject- 
ment88; or  it  may  require  an  ancillary  proceeding  in  equity 
to  foreclose  the  lien  after  entry  of  such  judgment86. 

§212.     Reimbursement  of  Defeated  Purchaser. 

The  auditor  general  cannot  refund  any  money  to  defeated 
purchasers  unless  expressly  so  authorized  by  statute. 

50.  Andrews  v.   Courtwright,      L.  Co.,  138  Mich.  5,  9. 

47   Mich.   161;   LaCoss  v.   Wads-  55.     H.    S.    §1208;     Beard    v. 

worth,    56   Mich.    421;    Hoyt  v.  Sharrick,  67  Mich.  321;  Sinclair 

Southard,   58   Mich.   432;   Good-  v.    Learned,    51    Mich.   335.      In 

man    v.   Nester,    64   Mich.    662;  Stockle  v.  Silsbee,  41  Mich.  615, 

Tillotson    v.  Webber,    96  Mich.  622,    it    is  held    that    only    the 

145.     See  §231,  205.  legal  taxes  paid  become  a  lien. 

51.  See    Collateral    attack    of  56.     C.  L.   1871,   §1131;   H.   S. 
decree.  §1167;    Weimer    v.     Porter,    42 

52.  Sirr  v.   Miller,   121   Mich.  Mich.    569;    Ellsworth    v.    Free- 
598.  man,   43    Mich.   488;    Tillotson   v. 

53.  Day  v.  Davey,  132  Mich.  Circuit  Judge,  97  Mich.  585,  588 : 
173.  Robbins    v.    Barren,    34    Mich. 

54.  Hoffman  v.  Loud  &  Sons,  517,  an  action  at  law. 


•-"''.'  THE  DEED  AND  ITS  INCIDENTS  §  2  I  'i 

Wliere  the  statute  provides  for  refunding  the  money,  "if 
the  deed  was  annulled  pursuant  to  law,"  it  must  be  held  void 
in  an  action  planted  upon  it,  and  not  collaterally57.  The 
lien  for  taxes  cannot  be  enforced  against  the  land  until 
after  the  rendition  of  a  judgment  against  the  grantee.  It 
will  not  be  sufficient  that  the  deed  is  void,  or  that  the  law 
under  which  the  taxes  were  spread  or  sale  held  has  pre- 
viously been  held  void  or  unconstitutional  by  the  court  of 
last  resort58.  In  so  far  §118  of  Act  1">;J  of  Public  Acts 
of  1885  attempts  to  convert  a  tax  lien  into  a  mortgage,  it 
is  void,  not  being  within  the  title  of  the  act59.  Under  this 
act,  the  auditor  general  had  the  power  to  reimburse  de- 
feated purchasers,  sales  under  the  act  being  held  void80. 
In  the  absence  of  a  statute  transferring  the  lien  of  the 
state  for  taxes,  a  purchaser  at  a  void  sale  acquires  no  lien 
on  the  property  for  his  purchase  price,  nor  for  taxes  sub- 
sequently paid.  This  rule  is  based  upon  the  principle  that 
taxes  are  not  matters  of  contract  and  that  only  statutory 
measures  are  to  be  resorted  to  for  their  collection8 x.  Un- 
der §104  of  Act  206  of  Public  Acts  of  1893,  a  defeated 
purchaser  could  recover  for  his  improvements,  but  not  for 
his  purchase  price  and  money  paid  for  taxes8*.  Under 
Act  200  of  Public  Acts  of  1891,  there  is  no  provision  for 
reimbursing  the  purchaser  where  his  deed  is  held  void63. 

57.  Crane  v.  Reeder,  25  Mich.      aside  within  the  time  prescribed 
320;     Ball    v.   Auditor    General,      in  that  law. 

133   Mich.  521;   Rice  v.  Auditor  59.     Ball   v.    Busch,   64    Mich. 

General.   30   Mich.   12;    Harding  338;  Nester  v.  Busch,  64  Mich. 

v.    Auditor    General,    136    Mich.  657. 

358,   holding   that   law   of   1889  60.     Croskery    v.    Busch,    116 

does    not    cut  off    refunding  of  Mich.  288. 

taxes  provided  by  law  of  1885.  61.     Auditor    General    v.    Bay 

58.  Nester  v.  Busch.  64  Mich.  Co.,  106  Mich.  662. 

657;     Wolverine     Land     Co.     v.  62.       C.  L.  53927:  Croskery  v. 

Auditor  General,  133  Mich.  666.  Busch,  116  Mich.  288. 

holding  that  money  should  not  63.     Ball   v.   Auditor   General, 

be   refunded,   under   tax   law   of  133  Mich.  521. 
1869.  unless  the  tax  deed  is  set 


§  212  THE  LAW   OF  TAXATION  :;i)M 

* 

Under  the  act  of  1893  the  auditor  general  cannot  refund  a 
tax  if  the  land  was  subject  to  assessment64.  This  section, 
as  amended  in  1895,  authorizes  the  refunding  of  the  tax 
to  the  defeated  purchaser;  and  the  owner  of  the  deed 
may  set  up  the  fact  of  the  illegality  of  the  sale  and  compel 
repayment  by  mandamus65.  The  purchaser,  however,  is 
not  entitled  to  reimbursement  when  he  enters  the  premises 
without  giving  the  six  months  notice  required  by  Act  229 
of  Public  Acts  of  189766.  The  equity  court  will,  however, 
as  a  condition  precedent  to  setting  aside  a  void  tax  deed, 
order  that  the  defeated  purchaser  be  reimbused67 .  A 
former  statute  has  required  a  tender  of  all  taxes  paid  sub- 
sequent to  the  issuing  of  the  tax  deed  as  a  condition 
precedent  to  an  entry  of  judgment  in  ejectment  against  the 
tax  title  holder68.  This  statute,  passed  in  1865,  required 
the  court  to  determine,  the  amount  of  taxes  paid,  but  re- 
lated only  to  tax  titles  acquired  after  its  passage69.  This 
statute,  providing  for  the  recovery  of  taxes  with  interest 
at  the  rate  of  25%,  is  broad  enough  to  cover  tax  titles 
purchased  from  the  state.  The  proceeding  to  enforce  this 
lien  is  ancillary  to  the  judgment  and  may  be  by  motion. 
The  statute  of  limitations  does  not  apply  to  this  provision, 
and  rights  acquired  thereunder  are  not  divested  by  the  law 
of  188270.  When  a  purchaser  has  been  refused  a  writ  of 

64.  C.    L. '§3921;    98    of    Tax  Wood,  115  Mich.  454;  Jenkinson 
Law  of  1893;  Flint  Land  Co.  v.  v.   Auditor    General,    104   Mich. 
Auditor  General,  133  Mich.  542.  34;  McGinley  v.  Mining  Co.,  121 

65.  C.  L.  §3896;  Gurd  v.  Audi-  Mich.  89. 

tor     General,     122     Mich.     151;  68.    H.     S.     §1208;     Beard     v. 

Auditor    General    v.    Patterson,  Sharrick,  67  Mich.  321;  Sinclair 

122  Mich.  39.  v.  Learned,  51  Mich.  335. 

66.  Corrigan     v.     Davis,    125  69.     Shaw  v.  Morely,  89  Mich. 
Mich.  125.  313;     Philips     v.     New     Buffalo 

67.  Aztec      Copper      Co.      v.  Twp.,  68  Mich.  217. 

Auditor  General,  128  Mich.  615;  70.  Tillotson  v.  Circuit  Judge 
Connecticut,  etc..  Ins.  Co.  v.  97  Mich.  587. 


301  THE  DKK|>  AND  ITS   1NC1D1  \  .'  1 '.', 

assistance  in  a  proceeding  to  which  the  auditor  general  was 
not  made  a  party,  the  state  will  not  be  compelled  to  refund 
the  purchase  price  when  the  writ  was  refused71.  A  pur- 
chaser bought  certain  lands  for  taxes  of  1891,  1802,  1- 
and  lMi.~>;  under  the  statute  ;.N  t<>  the  tax  of  1s'.'',?,  he  was 
bound  to  pay  all  subsequent  taxes.  These  tax  deeds  being 
held  invalid,  he  was  refused  reimbursement  on  the  ground 
that  he  was  entitled  to  a  new  deed  for  the  tax  of  189:3 ;  as 
that  deed  would  be  good,  he  was  not  entitled  to  reimburse- 
ment for  the  other  years  because  it  was  his  duty  to  pay 
them  on  account  of  his  purchase  of  the  1892  tax7*.  How- 
ever, under  §§84,  141,  the  tax  purchaser  may  demand  re- 
payment of  invalid  taxes  paid  by  him,  as  a  condition 
precedent  to  reconveyances7*.  When  a  tax  sale  is  held 
void,  the  court  may  also  order  the  repayment  of  taxes  paid 
by  the  defeated  purchaser  subsequent  to  this  purchase. 
Such  taxes  will  constitute  a  lien  upon  the  property74. 
Where  land  is  redeemed  from  a  tax  sale,  the  purchaser  is 
entitled  to  repayment;  but  if  he  delays  enforcing  such  re- 
payment for  over  six  years,  the  statute  of  limitations  will 
run  against  him70. 

55213.     Reimbursement.     Improvements. 

If  the  description  of  the  land  is  erroneous,  the  purchaser 
is  not  entitled  to  compensation  for  his  improvements76.  To 
authorize  compensation  for  improvements,  the  possession 
must  be  held  solely  by  the  tax  title.  The  legislature  having 
given  the  privilege  of  ejectment  in  certain  specified  cases 

71.  Newton   v.   Auditor   Gen-  74.     Sanborn    Co.    v.    Aiston, 
era!,  131  Mich.  547.  153  Mich.  456. 

72.  Harding  v.  Auditor  Gen-  75.     McRac    v.    Auditor    Gen- 
eral, 140  Mich.  646.  eral,  146  Mich.  594. 

73.  Haney  v.  Miller.  15  L.  N.  76.     King  v.  Potter,  18  Mich. 
592.  134. 


§  213  THE  LAW  OF  TAXATION  :J02 

only,  have,  by  this  specification,  just  as  clearly  shown  their 
intention  to  exclude  every  other  class  of  cases  from  the 
operation  of  the  statute  as  if  they  had  expressly  so  declared. 
It  does  not  apply  to  a  combined  holding  under  a  tax  deed 
and  a  sheriff's  deed77.  In  order  to  recover  for  improve- 
ments, the  occupancy  must  be  such  as  would  constitute 
adverse  possession78.  The  claim  for  improvements  must 
be  filed  in  the  case,  and  cannot  be  made  after  judgment  but 
before  a  second  trial79.  Neither  does  the  statute  apply  to 
tenants  in  common  holding  undivided  interests80.  Where 
the  owner  of  land  purchases  tax  titles,  a  third  party  being 
in  possession  and  claiming  by  adverse  possession  an  insuf- 
ficient time  to  give  title,  the  owner  will  be  obliged  to  pay 
for  the  improvements  made  on  recovering  such  posses- 
sion81. A  tax  purchaser  who  enters  the  land  without  giv- 
ing the  statutory  notice,  is  a  trespasser,  and  cannot  recover 
either  the  purchase  price  he  paid,  nor  for  his  improve- 
ments8*. 

77.  C.  L.    1857,    §4603,    C.    L.       Mich.  440. 

1871,  §1131,    C.    L.    §3927 ;    King  81.     Boucher  v.  Trembley,  140 

v.    Harrington,    18    Mich.    213;  Mich.  352.    In  this  case  plaintiff 

Sands  v.  Davis,  40  Mich.  14,  18;  purchased    the    tax    title,     and 

Gillman    v.    Riopelle,    18    Mich.  without  giving  the  notice  of  tax 

145.  sale  under  C.  L.  §3961,  afterwards 

78.  Sleight  v.  Roe,  125  Mich,  purchased  the   original   title. 
585.  82.     Corrigan  v.  Hinckley,  125 

79.  Newaygo  Co.  Mfg.  Co.  v.  Mich.   125;   Huron   Land  Co.  v. 
Eichtenaw,  81   Mich.  416.  Robarge,    128   Mich.   686;    Cook 

80.  Sands  v.  Davis,  40  Mich.  Land   Co.  etc.  v.   McDonald,  15 
14,   18;   Martin   v.    O'Conner,   :J7  L.  N.  953. 


CII.MTKK  XIII. 
STATUTES  AND  ESTOPPEL. 

§214.  Limitations.     Deed  Conclusive. 

1215.  Limitations  in  Re  Tax  Deeds. 

5216.  Limitations  in  Re  State  Homestead  Lands. 

9217.  Statute  of  Limitations,  Accounts. 

9218.  Construction  of  Statutes. 
§211).  Legalizing  Acts. 

9220.  Legislative  Allowance  of  Claims. 

§221.  Retroactive  Statutes. 

9222.  Healing  Acts. 

9223.  Healing  Acts.  When  They  do  Not  Apply. 

9224.  Title  of  Acts. 

9225.  Estoppel. 

9226.  Estoppel  on  Drains. 

CROSS-REFERENCES. 

Construction  of  Drain  Statutes,  9297.  Drain  Laws,  99301 -?.03. 
Healing  Acts,  99300,  375.  Saving  Clauses,  9298.  Validating  Vts, 
1209. 


§214.     Limitations.     Deed  Conclusive. 

Unless  specially  provided  by  statute,  the  statute  of  limi- 
tations does  not  begin  to  run,  or  apply,  in  favor  of  a  tax 
title  holder  who  was  in  possession  under  some  other  claim, 
whatever  may  have  been  its  nature,  at  the  time  of  obtain- 
ing a  tax  title1.  The  provision  that  a  deed  shall  be  conclu- 
sive evidence  of  title  in  fee  simple,  applies  only  in  case  the 
court  obtained  jurisdiction  to  enter  the  decree  of  sale.  The 
legislature  has  attempted  to  have  questions  in  regard  to  the 
validity  of  taxes  settled  before  sale,  by  adjudication.  The 

1.  Gill  man  v.  Riopelle.  J8  holder  was  in  possession  when 
Mich.  145,  164;  the  tax  title  he  purchased  the  tax  deed. 


§  214  THE  LAW  OF  TAXATION  :j(J4 

proceeding  is  a  judicial  one,  and  the  first  requisite  is  juris- 
diction of  the  person  to  be  bound  by  the  -decree.  It  was  not 
the  intention  of  the  legislature  to  require  judicial  proceed- 
ings involving  personal  service  of  a  subpoena  for  their 
foundation,  and  at  the  same  time  provide  that  the  delivery 
of  a  deed  under  the  decree  shall  effectually  conclude  the 
owner,  whether  the  court  acquired  jurisdiction  or  not.  The 
statute,  of  necessity,  determines  the  nature  of  the  title  con- 
veyed by  a  valid  sale  and  deed,  viz.,  an  absolute  title  in  fee, 
subject  to  subsequent  taxes.  It  is  not  within  the  power  of 
the  legislature  to  deny  the  right  to  defend  against  the  tax 
deed2.  The  provision  of  1858  authorizing  proceedings  be- 
fore a  circuit  court  commissioner  to  test  the  validity  of  a 
tax  title  is  unconstitutional3,  and  the  further  provision  that 
A  tax  deed  of  record  for  two  years  shall  be  conclusive  evi- 
dence of  title,  falls  with  it4.  In  so  far  as  the  statute  de- 
clares that  lands  bid  off  to  the  state  and  not  disposed  of 
for  five  years,  shall  vest  an  absolute  title  in  the  state  it  is 
not  a  statute  of  limitations  and  is  unconstitutional.  One 
in  possession  of  property  cannot  be  compelled  to  institute 
proceedings  against  an  opposing  claimant5.  A  provision 
making  a  tax  deed  conclusive  evidence  of  title  in  fee  simple 
is  not  a  statute  of  limitation,  and  is  void.  In  any  case,  a 
statute  of  limitations  applies  only  to  sales  made  after  the 
act  takes  effect*.  A  provision  that  attempts  to  make  a  tax 
title  valid  unless  the  legal  taxes  have  been  paid  or  tendered, 
is  unconstitutional.  The  lawful  power  of  the  state  is  a 
power  to  sell  so  much  only  as  is  sufficient  to  pay  such  taxes 

2.  3    H.    S.    §1170g6;    present      Mich.  168. 

statute  C.  L.  §3895;  Taylor  v.  5.  Case  v.  Dean,  16  Mich. 
Deveaux,  100  Mich.  581,  583.  12;  Grosbeck  v.  Seeley,  13  Mich. 

3.  Waldby     v.     Callender,     8      329. 

Mich.  430.  6.     Porter    v.   Van    Dyke,   31 

4.  Quinlan      v.      Rogers,      12      Mich.   176. 


I"..  STATUTES  AND  ESTOPPEL  I    .' 1  1 

as  the  law  authorized.  The  selling  of  land  for  taxes  of 
which  a  part  are  illegal,  is  not  a  case  of  mere  excess  in  the 
execution  of  the  power  by  the  officer  intrusted  with  it;  \»- 
the  sum  demanded  is  so  made  up  that  he  could  not,  if  he 
would,  have  offered  to  sell  for  the  legal  taxes  alone7.  A 
provision  that  a  tax  title  holder  shall  not  be  entitled  to 
possession  of  the  premises  unless  he  pays  or  tenders  a  sub- 
sequent void  tax  title  holder  the  cost  of  his  tax  title,  is  valid 
and  equitable.  It  is  analagous  to  requiring  a  party  assail- 
ing a  tax  to  pay  what  is  legal8. 

Statutory  Provision. 

C.  L.  §3895,  being  §72  of  Act  206  of  Public  Acts  of 
1893,  provides :  "On  presentation  of  such  certificate  of 
sale  to  the  auditor  general  or  his  deputy  after  the 
expiration  of  the  time  provided  by  law  for.  the  re- 
demption of  land  sold  as  aforesaid,  the  auditor  general 
or  his  deputy  shall  execute  and  deliver  to  the  purchaser, 
his  heirs  or  assigns,  a  deed  of  the  land  therein  described, 
unless  the  sale  thereof  shall  have  been  redeemend  or 
annulled  as  by-law  provided,  which  deed  shall  be  en- 
titled to  record  in  the  office  of  the  register  of  deeds  of 
the  proper  country,  in  the  same  manner  and  with  like 
effect  as  other  deeds  duly  witnessed,  acknowledged  and 
certified.  Such  deeds  shall  convey  an  absolute  title  to 
the  land  sold,  and  be  conclusive  evidence  of  title,  in 
fee.  in  the  grantee,  subject,  however,  to  all  taxes  as- 
sessed and  levied  on  such  lands  subsequent  to  the  taxes 
for  which  the  same  was  bid  off.  The  courts  may,  on 
application,  put  the  purchaser  in  possession  of  the 
premises  by  writs  of  assistance.  *  *  *" 

7.     Silsbee      v.      Stockle,      44  '      8.     Sinclair      v.      Learned,      51 
Mich.   561,   569.  Mich.  335.  345. 

(20) 


§  215  THE  LAW  OF  TAXATION  306 

§215.     Limitations  In  Re  Tax  Deeds. 

The  possession  of  land  under  color  of  tax  title  for  the 
statutory  period,  bars  the  title  of  the  original  owner9.  This 
possession  will  run  against  a  state  bid  as  well  as  against  a 
private  individual10.  The  statute  runs  whether  the  deed 
be  good  or  bad ;  in  fact,  there  is  no  purpose  or  necessity  of 
a  statute  of  limitations  if  all  tax  deeds  were  valid11.  The 
period  of  limitations  does  not  begin  to  run  until  the  holder 
of  the  tax  title  has  had  possession  the  statutory  period 
which  was  in  force  when  the  sale  was  made.  If  there  has 
been  no  occupancy  of  the  premises  by  the  original  owner 
sufficiently  long  to  give  title  by  adverse  possession,  the 
holder  of  the  tax  title  is  not  barred  from  bringing  his  action 
by  any  lapse  of  time  unless  there  is  express  statutory 
authority  to  the  contrary13'.  The  tax  law  of  1885,  limiting 
the  right  of  a  tax  title  holder  to  five  years  in  which  to 
bring  his  action  after  the  right  of  possession  accrued  to 
him,  is  a  provision  in  limitation,  and  is  not  repealed  by  the 
tax  law  of  189913.  Act  128  of  Laws  of  1901  (§143),  is 
not  a  general  statute  of  limitations  as  to  tax  titles,  but 
applies  only  to  title  obtained  through  chancery  proceedings 
in  obtaining  a  writ  of  assistance14.  The  provision  of  this 
section,  however,  requiring  an  owner  in  possession  to  in- 

9.  See  also  §397  as  to  cancel-      599;  Vier  v.   Detroit,   111   Mich, 
ing  deeds  by  the  auditor  gener-      646. 

al,  and  §398  as  to  setting  aside  11.     Chamberlain  v.  Ahrens,  55 

deed    by    the    court.      Perry    v.  Mich.   Ill;    Reilly  v.    Blaser,   61 

Hepburne,    4    Mich.    165;    Gros-  Mich.  399;   Pence  v.   Miller,  140 

beck  v.  Seely,  13  Mich.  329.  Mich.   205. 

10.  Cass  Farm  Co.  v.  Detroit,  12.     Harrison    v.    Spencer,    90 
139  Mich.  318;  Harrison  v.  Spen-  Mich.  586. 

cer,  110  Mich.  215;  Chamberlain  13.     St.   Marys   Power   Co.   v. 

v.  Ahrens,  55  Mich.  Ill;  Schnei-  Water    Power    Co.,    133    Mich, 

der    v.    Detroit,    135    Mich.    570;  470. 

Flynn  v.  Detroit,  93  Mich.  590;  14.     Briggs     v.     Guleck,     143 

Leonard    v.    Detroit,    108    Mich.  Mich.  457. 


307  STATUTES  AND  ESTOPPEL 

stitute  proceedings  within  six  months  after  notice  is  un- 
constitutional. This  is  upon  the  principle  that  one  who  is 
himself  in  the  legal  enjoyment  of  his  property  cannot  have 
his  rights  therein  forfeited  to  another  for  failure  to  bring 
suit  against  that  other  within  a  time  specified  to  test  the 
validity  of  a  claim  which  the  latter  asserts  but  takes  no 
steps  to  enforce15.  It  would  seem  that  the  statute  of  limi- 
tations would  begin  to  run  from  the  time  that  a  purch;iM-r 
has  the  right  to  demand  a  deed  upon  the  theory  that  it  was 
not  the  intent  of  the  statute  to  put  it  in  the  power  of  the 
tax  purchaser  to  postpone  enforcing  his  rights  at  in* 
pleasure16.  The  general  statute  of  limitation,  C.  L.  §9714, 
does  not  limit  the  time  in  which  a  bill  may  be  filed  to  quiet 
title.  §66  of  Public  Acts  of  1889,  being  §70  of  the  tax  law 
of  1891,  providing  that  no  sale  should  be  set  aside  after  the 
purchaser  had  been  in  possession  for  five  years,  was  limited 
to  sales  under  the  law  of  1873.  Section  73  of  the  tax  law 
of  1893,  C.  L.  §3896.  is  general  in  its  terms. and  applies 
to  all  sales17.  The  six  months  limitation  to  redeem,  after 
sale  by  the  state  to  a  third  party,  is  constitutional.  It  is 
intended  as  a  measure  of  protection  to  the  original  owner, 
and  he  cannot  complain18.  Where  two  contiguous  parcels 
of  land  are  included  in  one  deed  acts  of  ownership  on  one 
parcel  will  show  dominion  over  both  tracts19. 

Statutory  Provisions. 

C.  L.  §:JS'.M5.  as  amended  by  Act  202  of  Public  Acts 
of  1899,  being  Tax  law  §73 :    "No  sale  of  any  lands 

15.  O'Connor  v.  Carpenter.  14G  Mich.  208,  construing  Act 

144  Mich.  240;  Grosbeck  v.  See-  229  of  Public  Acts  of  1897; 

Icy,  13  Mich.  329.  Monoghan  v.  Auditor  General, 

"id.  Palmer  v.  Palmer,  3fi  136  Mich.  237:  John  Duncan 

Mii-h.  487;  in  re  demand  notes.  Land  &  Mining  Co.  v.  Rusch, 

17.  Pence  v.  Miller,  140  Mich.  145  Mich.  1. 

20."  19.     Kingston  v.  Guck,  15  L. 

18.  Reed  v.  Auditor  General,      N.   998,   where   the  property   was 


§  215  THE  LAW  OF  TAXATION  :5<>8 

or  deed  made  by  the  auditor  general  under  the  pro- 
visions of  this  act  shall  be  set  aside  or  annulled  by  any 
court  of  this  state  after  the  purchaser,  his  heirs  or 
assigns  have  been  in  actual  and  undisputed  possession 
of  such  lands  so  sold  or  conveyed  for  a  period  of  five 
years  from  the  date  of  such  purchase  of  deed.  *  *  *" 

C.  L.  §3902,  passed  in  1897,  being  Tax  law  §143, 
provided  that  every  person  properly  served  with  the 
notice  of  tax  purchase  who  neglected  to  pay  the  sum 
provided  for  tax  redemption  within  the  time  specified, 
should  be  barred  from  questioning  the  validity  of  such 
tax  title  or  deed  thereafter.  This  section  was  held  un- 
constitutional in  Citizens  Savings  Bank  v.  Auditor 
General,  123  Mich.  511,  because  these  provisions  were 
broader'  than  the  title  of  the  act.  The  section  was 
again  re-enacted  by  Act  128,  of  1901. 

H.  S.  §8698,  limited  the  time  to  bringing  an  action 
'to  recover  possession  of  lands  held  by  or  under  tax 
titles  to  ten  years  after  the  right  of  action  accrued. 
This  act  went  into  effect  Dec.  31st,  1863.  C.  L.  ^9714 
limits  the  time  to  five  years;  it  was  passed  in  1893.  §66 
of  Public  Acts  of  1889,  being  §70  of  the  Tax  law  of 
1891,  providing  that  no  sale  should  be  set  aside  after 
the  purchaser  had  been  in  possession  for  five  years,  was 
Land  Commissioner  v.  Auditor  General,  131  Mich. 
147,  153. 

§115  of  Act  153  of  Public  Acts  of  1885,  provides: 
"The  right  to  recover  possession  of  any  land  by  any 
person  claiming  through  or  under  any  deed  executed 
by  the  auditor  general  by  virtue  of  the  provisions  of 
this  act  shall  be  forever  barred  by  the  actual,  open, 

deeded  by  the  state  as  two  par-      eels,  and  thereafter  deeded  by  the 

grantee  as  one  parcel. 


30'J  STATUTES  AND  ESTOPPEL  §'.M«'. 

and  continuous  possession  of  any  person  claiming  such 
land  adversely  to  such  tax  deed  for  the  period  of  five 
years  after  the  execution  of  such  tax  deed :  Provided, 
that  if  the  person  claiming  through  or  under  such  tax 
deed  for  the  period  of  five  years  shall  have  once  taken 
actual  and  peaceable  possession  of  such  land  by  virtue 
of  his  deed,  and  shall  have  continued  in  such  actual 
possession  for  five  years  next  thereafter,  then  the  pro- 
visions of  this  section  shall  not  apply,  but  in  such  case 
he  shall  conclusively  deem  the  owner  in  fee  simple  of 
such  land." 

§116  "No  person  shall  bring  or  maintain  any  ac- 
tion for  the  recovery  of  any  land  or  the  possession 
thereof,  or  make  any  entry  thereupon,  unless  such  ac- 
tion is  commenced  or  entry  made  within  five  years 
after  the  right  to  make  such  entry  or  to  bring  such 
action  shall  have  first  accrued  to  the  plaintiff,  or  to 
some  person  through  whom  he  claims,  when  the  de- 
fendant claims  title  tinder  a  deed  made  by  the  auditor 
general  in  pursuance  to  the  provisions  of  this  act." 
This  is  a  statute  of  limitation  and  is  not  repealed  by 
C.  L.  §9714.  Acts  No.  8  of  Public  Acts  of  1899.  No. 
195  of  Public  Acts  of  1889,  No.  200  of  Public  Acts  of 
1891,  did  not  repeal  these  provisions.  St.  Mary's 
Power  Co.  v.  Water  Power  Co.,  133  Mich.  470.  475. 

§216.     Limitations  In  Re  State  Homestead  Lands. 

The  deed  from  the  auditor  general  to  the  land  commis- 
sioner is  not  prima  facie  evidence  of  title;  nor  is  the  state, 
by  virtue  of  such  deed,  a  purchaser  of  the  lands  deeded, 
within  the  statutes  of  limitation  referred  to  in  the  preceed- 
ing  section.  Inasmuch  as  Act  No.  84  of  the  Public  Acts  of 
1903  establishes  the  time  within  which  owners  of  the  orig- 


§216  THE  LAW  OF  TAXATION  :>10 

inal  title  shall  begin  proceedings  against  the  state  to  re- 
cover lands  held  as  state  homestead  lands,  such  action 
negatives  the  idea  that  the  other  provisions  referred  to  are 
to  be  treated  as  applying  to  the  state.  The  provisions  of 
§131  of  the  tax  law,  with  reference  to  homesteaders,  do 
not  apply  to  purchasers  who  do  not  actually  reside  upon 
the  land  even  though  they  may  inclose  it20.  A  party  who 
fraudulently  procured  lands  to  be  set  aside  as  homestead 
lands  by  permitting  taxes  to  become  and  remain  delinquent 
which  it  was  his  duty  to  have  paid,  cannot,  in  an  action 
by  the  owner  to  recover  such*  lands,  interpose  the  limita- 
tions applicable  to  these  lands,  where  the  owner  tenders 
to  the  state  the  amount  due  on  such  back  taxes.  The  auditor 
general  and  land  commissioner  should  not  be  made  parties 
to  such  a  bill,  however21.  Statutes  of  limitation,  similar 
to  §127,  have  been  sustained  in  other  states;  and  it  is  there- 
fore a  valid  provision,  and  the  determination  cannot  be  as- 
sailed when  the  six  months  have  expired22.  This  provision 
of  limitation  will  not  excuse  laches  which  occurred  prior 
to  the  setting  the  lands  aside  as  homestead  lands23.  A 
delay  of  more  than  90  days  in  filing  the  deed  after  the 

20.  See  §53,  supra,  or  desig-  ting   off   of   the   lands   is    not   a 
nation      of      homestead      lands,  judicial    act,    nor    one    in    which 
Morse   v.   Auditor    General,   143  the  original  owner  has  any  in- 
Mich.   610;   People  v.   Christian,  terest.     Griffin    v.    Kennedy,    14 
144  Mich.  247,  sustaining  consti-  L.  N.  312.     The  bar  is  absolute, 
tutionality  of  act.  the    transfer    cannot    be    ques- 

21.  Dixon  v.    Ludington,   130  tioned  by  bringing  an  action  of 
Mich.  269.  replerin  for  timber  cut  after  the 

22.  State    Land    Commission-  period  of  limitation  had  expired, 
er  v.  Auditor  General,  131  Mich.  Jackson  Lansing  R.  Co.  v.  Solo- 
147,  153;  Jackson,  Lansing  &  S.  mon     Lumber    Co.,     146    Mich. 
R.  Co.  v.  Solomon  Lumber  Co.,  204,  the  fact  that  the  land  was 
146  Mich.  204.    This  is  upon  the  deeded    by    forties    instead    of 
theory  that   the   original   owner  one  entire  description;  is  main- 
has   lost   his    title   to   the    state  tained. 

before  the  lands  were  set  off;  23.  Owens  v.  Auditor  Gencr- 
and  that  consequently,  the  set-  al,  147  Mich.  683. 


Ml  STATr  TKS   AMi   I  Slitl'THI.  §210 

determination  is  made  does  not  affect  the  conclusiveuess  of 
the  determination.  The  original  owner  had  no  interest 
in  these  proceedings  because  his  title  has  been  divested 
prior  to  the  determination24. 

Statutory  Provisions. 

C.  L.  §3949,  as  amended  by  Act  107  of  Public  Acts 
of  1899,  Tax  law  §127  provides:  "And  no  suit  shall 
be  instituted  to  vacate,  set  aside  or  annul  the  said 
determination  of  the  said  auditor  general  and  the 
commissioner  of  the  state  land  office  made  as  aforesaid 
unless  instituted  within  six  months  after  the  determin- 
ation aforesaid.  *  *  *" 

C.  L.  §3953  as  amended  by  Act  107  of  Public  Acts  of 
1899,  Tax  law,  §131,  provides  that  a  person,  after 
residing  upon  such  land  for  five  years  and  improve 
the  same,  shall  be  entitled  to  a  deed.  "Such  deed 
shall  convey  an  absolute  title  to  the  land  sold,  and  shall 
be  conclusive  evidence  of  title  in  fee  in  the  grantee, 
and  it  shall  be  the  duty  of  the  State  of  Michigan  to 
defend  and  prosecute  all  suits  brought  to  protect  such 
title  and  the  state  shall  pay  all  costs  adjudged  against 
the  homesteader.  *  *  * 

"And  provided  further,  that  any  person  who  has 
purchased  and  entered  into  possession  of  any  lands  as 
«a  homestead,  under  and  by  virtue  of  the  provisions 
of  this  section,  as  originally  passed  or  as  amended 
when  said  lands  had  been  bid  off  to  the  state  and  were 
held  by  the  state  for  the  taxes  of  one  or  more  years, 
and  said  lands  were  delinquent  for  taxes  for  three  or 
more  years,  shall,  on  performing  the  other  conditions 

24.     Downer     v.     Richardson,      148  Mich.  596. 


$  217  THE  LAW  OF  TAXATION  '.',  \:> 

of  said  section  as  amended,  receive  a  deed  therefor,  as 
herein  provided,  and  shall  be  deemed  to  have  a  good, 
sufficient  fee-simple  title  to  said  premises,  to  all  intents 
and  purposes  the  same  as  though  said  lands  had  been 
bid  off  to  the  state  for  a  consecutive  period  of  more 
than  three  years,  as  originally  provided  in  §127  of 
said  act.  And  in  all  cases  where  the  lands  have  been 
taken  as  a  homestead  as  set  forth  in  the  last  foregoing 
proviso,  all  actions  of  ejectment  or  to  recover  posses- 
sion of  said  lands  or  to  set  aside  the  title  of  such  home- 
steader by  any  person,  firm  or  corporation  claiming 
the  original  or  government  title  shall  be  commenced 
within  six  months  after  this  act  shall  take  effect  and 
not  afterwards."  This  section  also  provides,  that  be- 
fore commencing  such  suit,  the  person  or  party  asail- 
ing  such  title  shall  pay  to  the  auditor  general  all  de- 
linquent taxes,  costs,  charges  and  interest,  and  pay 
or  purchase  all  bids  and  titles  held  by  the  state. 

§217.     Statute  of  Limitations. 

Under  our  system  of  taxation  there  can  be  no  outlawry 
between  the  state  and  county,  nor  between  the  county  and 
township.  The  provision  as  to  the  time  of  payment  by  one 
municipal  body  to  another  is  directory  merely;  and  the 
general  statute  of  limitations  does  not  apply28.  As  be- 
tween the  state  and  a  private  individual,  however,  the 
statute  of  limitation  may  be  set  up  by  the  state2*. 


25.     Oceana  Co.  v.  Hart  Twp,  Co.    v.    Arenac    Co.,    Ill    Mich. 

48    Mich.   319;    Auditor    General  105. 

v.  Shiawassee  Co.,  74  Mich.  536,  26.     McRae  v.  Auditor  Gener- 

554;    Shiawassee    Co.    v.    Hazel-  al,  146  Mich.  594;  Wilkinson  v. 

ton    Twp.,    82    Mich.    440;    Bay  Auditor  General,   147   Mich   13. 


313  STATUTES  AM)  KSTOPPEL  §218 

§218.     Constructions  of  Statutes. 

The  previous  policy  of  the  state  will  be  considered  in  con- 
struing a  statute.  Unless  it  clearly  appear  that  it  contem- 
plates a  radical  change  of  the  policy  of  the  state,  it  will  be 
construed  so  as  to  be  in  harmony  with  a  long  continued 
policy.  It  having  been  the  policy  of  the  state  to  hold  the 
township  liable  for  delinquent  taxes  assessed  against  per- 
sonal property  for  state  and  county  taxes,  §89  of  Public 
Acts  of  1893  is  held  not  to  relieve  this  liability  though  it 
provides  that  the  taxes  collected  shall  be  paid  to  the  state, 
county  and  township  in  proportion  to  their  right  therein87. 
Where  a  new  question  of  practice  is  one  of  doubtful 
validity,  as  the  right  of  the  deputy  auditor  general  to  exe- 
cute a  state  tax  deed,  the  practical  construction  of  the 
statute  by  an  executive  department  of  the  government  for 
many  years  ought  not  to  be  disturbed  or  called  in  question 
where  it  has  done  no  mischief.  When,  in  the  performance 
of  its  executive  duties,  it  becomes  necessary  for  the  execu- 
tive department  to  construe  a  statute,  great  deference  is 
always  due  to  its  judgment:  and  the  obligation  is  increased 
by  the  lapse  of  considerable  time  before  its  acts  are  called 
in  question3*.  Under  the  practice  at  the  auditor  general's 
office,  the  counties  had  been  charged  legal  interest  on  an- 
nual balances,  under  various  provisions  of  the  statute  from 
1838  to  the  present  time,  providing  that  when  tax  sales 
were  set  aside  the  amounts  refunded  should  be  charged  up 
to  the  county  with  interest.  This  practice,  in  the  absence 
of  a  plain  statute  to  the  contrary,  is  sustained2".  Where, 

27.  C.     L.     83912:     Muskegon  Co.    v.    Hoge,    21    How.    35,   «6; 
City  v.  Muskegon  Co.,  123  Mich.  U.   S.   v.   Gilmorc,   8  Wall.   330: 
272,  275.  U.  S.  v.  Pugh,  99  U.  S.  265.  269; 

28.  Westbrook   v.    Miller,    86  Malonney  v.  Mahan,  1  Mich.  t«. 
Mich.    148,   151;   Surgett   v.   La-  29.     Auditor  General  v.   Shia- 
pice.  8  How.  48,  71;  Union  Ins.  wassee  Co.,  74   Mich.  536,  551. 


£  219  THE  LAW   OF  TAXATION  314 

however,  the  construction  placed  upon  the  interpretation 
of  a  statute  by  the  auditor  general's  department  is  challenged 
shortly  after  the  passage  of  the  act,  the  court  will  not  be 
justified  in  adopting  that  construction  unless  it  is  the  clear 
meaning  of  the  statute30. 

£219.     Legalizing  Acts. 

A  statute  which  attempts  to  make  a  tax  deed  unassail- 
able for  any  reason,  and  conclusive  evidence  of  title,  is  un- 
constitutional. If  what  has  been  levied  under  the  name 
of  a  tax  is  a  mere  arbitrary  demand,  made  by  the  public 
authorities  without  warrant  of  law,  it  is  not  in  the  power 
of  the  legislature,  by  any  device  whatever,  to  compel  its 
payment.  It  is  too  plain  to  admit  of  discussion  that  what 
the  legislature  cannot  do  directly  it  has  no  power  to  do  in- 
directly. If  it  cannot  coerce  payment  of  what  is  called  a 
tax  by  means  of  a  tax  warrant,  it  cannot  do  so  through 
withholding  the  party's  rights  until  he  makes  payment. 
An  assumed  tax  must  be  a  tax  in  fact,  or  no  number  of 
validating  acts  can  put  anyone  under  any  obligation  to  pay 
it31.  Where  a  tax  sale  is  void,  the  legislature  cannot  there- 
after give  effect  to  such  void  sale  and  so  deprive  an  indi- 
vidual of  his  property32.  It  is  true  that  a  retrospective 
statute,  curing  defects  in  legal  proceedings  where  they  are 
in  their  nature  irregularities  only,  and  do  not  extend  to 
matters  of  jurisdiction,  is  not  void  on  constitutional 
grounds,  unless  expressly  forbidden;  but  the  proposition 
that  the  legislature  can  make '  good  that  which  was  void 
when  done,  is  utterly  at  variance  with  the  fundamental  prin- 
ciples of  the  law.  When  such  a  statute  undertakes  to  take 

30.  Connecticut  etc.,  Ins   Co.      Mich.  335,  344. 

v.  Wood,  115  Mich.  444,  452.  32.     Auditor    General    v.    Bay 

31.  Sinclair     v.     Learned,     51       Countv,  106   Mich.  662,  675. 


•'!  1  ."•  STATUTES  AND  ESTOPPEL 

away  vested  rights  to  make  good  a  conveyance  which  the 
grantor  totally  lacked  the  power  to  make,  it  is  impossible- 
to  sustain  it33.  Where  the  defect  complained  of,  however, 
and  sought  to  be  remedied  by  the  legalizing  act,  is  not 
jurisdictional,  but  the  act  dispenses  with  or  changes  cer- 
tain rules  of  practice,  or  of  presumption,  as  dispensing  with 
a  certificate  or  certain  record  evidence,  it  will  be  valid 
though  it  act  retrospectively84.  Where  the  county  treas- 
urer issues  a  deed  which  should  have  been  given  by  the 
auditor  general,  it  is  competent  for  the  legislature  to 
legalize  such  deed.  Where  the  title  had  vested  in  the  state, 
the  right  to  sell  depends  upon  the  will  of  the  state  ex- 
pressed by  effective  legislation.  If  it  had  a  right  to  sell,  it 
had  a  right  to  adopt  or  validate  a  sale  previously  made35. 

$220.     Legislative  Allowance  of  Claims. 

The  constitution  forbids  the  allowance  of  private  claims 
by  the  legislature.  It  cannot  therefore  allow  claims  and 
provide  for  an  assessment  of  the  allowance  upon  a  munici- 
pality38. Neither  can  the  legislature  create  a  liability  in 
the  nature  of  a  debt  where  it  did  not  exist,  as  authorizing 
money  to  be  raised  to  reimburse  a  treasurer  for  money 
stolen87. 

33.  Hall    v.    Perry,   72    Mich.  the   electors   in   previously   rais- 
*02,    205;    Shouk    r.    Brown,    61  ing  a  bounty  tax.    No  provi-i<m 
Pa.  St.  327.  was   made   as   to   notice   of   the 

34.  Hoffman  v.  Pack  Woods  meeting:  hut  upon  a  finding  that 
&  Co.,  123  Mich.  74.  the   electors   had   notice   of   the 

35.  Sinclair    v.     Learned,    51  meeting,  though  the  period  was 
Mich.  335,  345;  People  v.  Lynch,  too  short  for  the  statutory  no- 
51   Cal.   16;   Butler  v.  Toledo,  5  tice  of  town  meetings,  the  court 
Ohio  St.  225;  Dunden  v.  Snod-  sustained  the  act. 

grass,  18  Pa.  St.  151;  Boardman  36.     Constitution   of    1*50.    Art. 

v.    Beckwith.    18    la.    292:    Len-  TV.  831,.  Beecher's  Constitution  of 

non  v.  New  York.  55  N.  Y.  3«1 :  190R.    Art.    V..    §34.      People    T. 

Astor  v.   New  York,  62   N.   Y.  Supervisors    of    Onondaga    Co.. 

580.       In   Crittenden  v.  Robert-  16  Mich.  269. 

son,  13  Mich.  58,  Laws  of  1863.  37.     Bristol     v.     Johnson,     34 

pp.   92-95,  legalized  the  vote  of  Mich.  123. 


^§  221,  '222  THE  LAW  OF  TAXATION  316 

§221.     Retroactive  Statutes. 

It  does  not  seem  to  be  questioned  but  that  it  is  competent 
for  the  legislature  to  make  the  provisions  of  an  act  apply 
to  taxes  previously  assessed.  The  question  is  whether  it 
has  expressed  an  intention  to  that  effect.  Unless  the  inten- 
tion clearly  appears,  the  familiar  rule  of  construction  which 
presumes  that  legislation  is  intended  to  have  a  prospective 
operation  only  will  require  the  court  to  hold  that  the  legis- 
lative purpose  was  that  the  act  should  apply  only  to  taxes 
subsequently  assessed.  For,  although  to  apply  it  to  taxes 
previously  assessed  would  not,  so  far  as  the  course  of 
official  proceedings  for  the  enforcement  thereof  is  con- 
cerned, be  strictly  retrospective,  in  the  proper  sense  of  that 
term,  yet  so  far  as  it  increased  penalties,  or  in  any  man- 
ner affected  the  tax  payers  rights  or  interests,  as  they  de- 
pend upon  previous  acts  or  delinquencies,  it  would  be 
plainly  so,  and  the  purpose  of  the  legislature  to  give  it  that 
operation  is  not  to  be  presumed  when  the  words  are  am-' 
biguous  or  reasonably  susceptible  of  a  different  construc- 
tion38. Act  No.  9  of  Public  Acts  of  1882,  was  not  retroac- 
tive ;  and  sales  under  that  act  for  taxes  of  prior  years  were 
void89. 

§222.     Healing  Acts. 

This  provision  will  cure  lack  of  record  of  proof  of  notice 
of  a  meeting40.     It  will  cure  a  delayed  verification  of  re- 

38.  Smith  v.    Auditor   Gener-  ment  of  property  by  a  levy  and 
al,  20  Mich.  398,  405,  by  Judge  collection  of  taxes  thereon." 
Coeley.  40.     Boyce     v.     Peterson,     84 

39.  Thomas     v.     Collins,     58  Mich.  490,   493;   Auditor   Gener- 
Mich.     64;     Dark     v.     Hall,     19  al  v.  Hutchinson,  113  Mich.  245; 
Mich.    356;    the   title    of   this   act  Crittenden      v.      Robertson,      13 
was  "to  provide  for  the  assess-  Mich.  58. 


;  1  ;  STATUTES  AND  ESTOPPEL 

turn  of  delinquent  taxes41.  It  will  cure  an  omission  to  at- 
tach a  certified  copy  of  decree  to  the  tax  record4*.  It  will 
cure  entering  a  decree  in  less  than  ten  days  before  sale43. 
It  will  cure  omission  of  supervisor's  certificate44.  It  will 
cure  ommission  of  county  treasurer  to  enter  delinquent  tax 
returns  in  the  books  in  his  office  for  that  purpose45.  It 
renders  harmless  a  misnomer46.  It  cures  omission  of  the 
word  "auction,"  from  "forced  or  auction  sale,"  in  certificate 
of  board  of  review47.  It  cures  informal  return  of  high- 
way labor  tax48.  It  cures  failure  of  assessing  officer  to 
extend  roll  in  exact  form  prescribed  by  statute,  as  omitting 
his  own  valuations ;  and  lack  of  extension  of  taxes  upon  his 
own  roll4".  It  will  cure  defect  of  only  majority  of  board 
signing  certificate  or  lack  of  record  of  adjournment80.  It 
validates  deed  of  county  treasurer  under  act  200  of  Public 
Acts  of  1891,  for  taxes  of  1889,  though  the  auditor  gen- 
eral should  have  given  the  deed51.  It  cures  the  omission 
of  the  board  of  review  to  keep  a  record82.  In  these  pro- 
ceedings, the  fact  that  irregularities  may  be  discovered,  fur- 
nishes no  obstacle  to  enforcing  the  state's  lien  for  a  tax 
equitably  due  the  state  and  chargeable  to  the  land  sought 
to  be  made  subject  to  the  lien,  provided  that  there  is  enough 
in  the  proceedings  to  show  that  the  levy  of  the  tax  is  au- 

41.  Auditor         General  v.      18;   Fletcher  v.   Post,   104   Mich. 
Hutchinson,   113  Mich.  245.  424. 

42.  Gates     v.  Johnson,  121          47.     Blue   Mining  Co.,  v.   Ne- 
Mich.  663.  gaunee,  105  Mich.  317. 

4:s.     Hooker     v.      Bond,     118  48.     Auditor  General  v.  Long- 
Mich.   255.  year,  110  Mich.  223. 

44.     Sinclair    v.     Learned,     51  49.     Ludington    v.     Escanaba, 

Mich.  335.  115   Mich.  288. 

4.r).     Auditor    General    v.    Ke-  50.     Auditor  General  v.  Spar- 

weenaw  Ass'n,  107  Mich.  405.  row,  116  Mich.  574. 

46.     Petrie     Lumber     Co.     v.  51.     Hoffman  v.  Pack  Woods 
Collins,  6fi  Mich.  64:  Mich  Dairy  &  Co.,  123  Mich.  74. 
Co.  v.   McKinlay,  70  Mich.  574;  52.     Auditor  General  v.  Buck- 
Hill   v.    Graham,   72   Mich.   B59;  eye  Iron  Co.,  132  Mich.  454. 
Bradley  v.    Bouchard.   85   Mich. 


§  222  THE  LAW  OF  TAXATION  318 

thorizecl.  Where  the  certificate  of  equalization  attached 
to  the  various  rolls  was  signed  by  the  chairman  alone,  with- 
out the  clerk,  it  is  held  harmless53. 

Statutory  Provision. 

C.  L.  §3922,  provides:  "No  tax  assessed  upon  any 
property,  or  sale  therefor,  shall  be  held  invalid  by  any 
court  of  this  state  on  account  of  any  irregularity  in 
any  assessment,  or  on  account  of  any  'assessment  or 
tax  roll  not  having  been  made  or  proceeding  had 
within  the  time  required  by  law,  or  on  account  of  the 
property  having  been  assessed  without  the  name  of 
the  owner,  or  in  the  name  of  any  person  other  than 
the  owner,  or  on  account  of  any  other  irregularity, 
t  informality,  or  omission,  or  want  of  any  matter  of 
form  or  substance  in  any  proceeding  that  does  not 
prejudice  the  property  rights  of  the  person  whose 
property  is  taxed;  and  all  proceedings  in  assessing 
and  levying  taxes  and  in  the  sale  and  conveyance 
therefor,  shall  be  presumed  by  all  the  courts  of  this 
state  to  be  legal,  until  the  contrary  is  affirmatively 
shown.  All  records,  statements  and  certificates  herein 
provided  for  shall  be  prima  facie  evidence  of  the  facts 
therein  set  forth.  The  absence  of  any  record  of  any 
proceeding  or  proceedings,  or  the  omission  of  any 
mention  in  any  record  of  any  vote  or  proceeding,  or 
mention  of  any  matter  in  any  statement  or  certificate 
that  should  appear  therein  under  the  provisions  of 
any  law  of  this  state,  shall  not  affect  the  validity  of 
any  proceeding,  tax,  or  title  depending  thereon,  pro- 
vided the  fact  that  such  vote  or  proceeding  was  had 

-53.     Auditor   General  v.   Nor-      rington,  140  Mich.  427. 


319  STATUTES  AND  ESTOPPEL  §  223 

or  tax  authorized  is  shown  by  any  other  record,  state- 
ment or  certificate  made  evidence  by  the  terms  of  this 
act  or  any  other  law  of  this  state.  No  tax,  or  sale  of 
property  for  any  tax,  shall  be  rendered  or  held  in- 
valid by  showing  that  any  record,  statement,  certifi- 
cate, affidavit,  paper  or  return  cannot  be  found  in  the 
proper  office;  unless  the  contrary  is  affirmatively 
shown,  the  presumption  shall  be  that  such  record  was 
made,  and  such  certificate,  statement,  affidavit,  paper 
or  return  was  duly  made  and  filed.  Where  any  state- 
ment, certificate  or  record  is  required  to  be  made  or 
signed  by  a  school  district  board  or  a  township  board, 
such  statement,  certificate  or  record  may  be  made  and 
signed  by  the  members  of  such  boards,  or  a  majority 
thereof,  and  it  shall  not  be  necessary  that  other  mem- 
bers be  present  when  each  signs  the  same.  The  pro- 
visions of  this  section  shall  not  be  construed  to  auth- 
orize any  showing  impeaching  the  validity  of  any  deed 
executed  by  the  auditor  general  under  the  provisions 
of  the  act,  but  such  deed  shall  be  held  absolute  and 
conclusive  as  herein  provided. 

§223.     Healing  Acts.     When  They  Do  Not  Apply. 

They  do  not  apply  to  jurisdictional  defects,  which  cannot 
be  supplied  by  evidence  dehor  the  record.  Therefore,  they 
will  not  heal  a  defective  affidavit  of  publication54.  They  do 
not  apply  to  the  report  of  sale  required  to  be  made  by  the 
county  treasurer55.  They  do  not  apply  to  a  tax  not  author- 
ized by  law58.  They  cannot  cure  an  unauthorized  alteration 

» 

54.  Benedict  v.  Auditor  Gen-  56.     Hart    v.    Henderson.    17 
oral,  104  Mich.  269.  Mich.    218:    Butler    v.    Saginaw 

55.  McFadden   v.    Brady,  120  Board,  26  Mich.  22. 
Mich.  699. 


§  224  THE  LAW  OF  TAXATION  320 

of  the  roll  after  it  is  in  the  collectors  hands57.  They  cannot 
reverse  judgments,  directly  or  indirectly,  by  legalizing  a  tax 
roll  and  so  render  a  previous  void  levy  legal58. 

C.  L.  1871,  §1129,  contemplated  a  lawful  return.     It 
was  intended  to  provide : 

1st :     Against  error  in  matter  of  form. 

2nd :  That  a  sale  for  several  taxes  should  not  be  void 
because  one  tax  was  illegal. 

3rd :     Not  to  require  a  record  to  be  accounted  for59. 

It  cannot  validate  an  illegal  sale60. 

It  will  not  cure  lack  of  verification  of  a  returned  tax81. 

It  will  not  validate  a  school  or  township  tax  authorized 
by  the  township  board,  where  the  record  does  not  show 
a  refusal  of  the  electors  to  act62. 

§224.     Title  of  Acts. 

Art.  XIV,  §14,  of  the  Constitution  of  1850,  or  Beecher's 
Constitution  of  1908,  Art.  X,  §6,  requires  that  every  law 
imposing  a  tax  shall  specify  the  object  to  which  it  shall  be 
applied.  This  provision,  however,  does  not  apply  to  speci- 
fic taxes  since  the  constitution  itself  provides  what  appli- 
cation shall  be  made  of  such  taxes,  and  the  legislature  is 
powerless  to  make  a  change63.  The  title  of  an  amendatory 
act  is  sufficient,  and  will  support  any  legislation  that  would 
have  been  permissible  under  the  original  title  when  the 
law  amended  was  enacted,  if  the  amendatory  act  refer  by 

57.  Ferton      v.       Feller,      33  61.     Hamilton    &    Co.    v.    La 
Mich.   199.  Anse  Twp.,  107  Mich.  419.. 

58.  Moser  v.  White,  29  Mich.  62.     Auditor    General    v.    Du- 
59;  Daniels  v.  Watertown  Twp.,  luth,    etc.    Ry.,    116    Mich.    122; 
61   Mich.  514.  Auditor  General  v.  Sparrow,  116 

59.  Upton     v.     Kennedy,     36  Mich.    574. 

Mich.   215.  63.     Walcott     v.     People,     17 

60.  Hall    v.    Perry,    72    Mich.      Mich.  68. 
202. 


:•.-.'  1  STATUTES  AND  ESTOPPEL  §   -'•'"• 

chapter  or  section  to  the  acts  amended,  giving  its  title84. 
The  title  of  Act  No.  195  of  Public  Acts  of  1889,  "to  pro- 
vide for  the  assessment  of  property  and  the  levy  of  taxes 
thereon,  and  for  the  collection  of  taxes  heretofore  or  here- 
after levied,"  will  support  §71  of  that  act  authorizing  a 
sale  of  state  tax  lands65.  A  title,  "An  act  to  amend  the 
charter  of  the  City  of  Jackson,  and  to  repeal  certain  sec- 
tions thereof,  and  to  add  certain  sections  thereto,"  is  broad 
enough  to  cover  a  change  whereby  the  county  instead  of 
city  treasurer  sold  delinquent  tax  lands60.  A  title  to  "pro- 
vide for  the  taxation  of  the  business  of  manufacturing 
and  selling"  liquor  will  support  directions  as  to  how  the 
money  collected  shall  be  disposed  of67. 

§225.     Estoppel. 

Many  acts  may  establish  an  estoppel  against  a  tax  payer 
whereby  he  will  be  prevented  from  recovering  an  illegal 
tax  paid,  or  compelled  to  pay  one.  Thus,  an  unreasonable 
delay  in  bringing  suit,  unexplained,  though  within  the 
statute  of  limitations,  will  bar  a  recovery68.  So,  also,  pay- 
ing a  portion  of  the  tax  will  waive  an  irregular  notice  of 
review69.  A  supervisor  who,  knowing  the  illegal  nature 
of  a  tax,  yet  as  a  member  of  the  board  of  supervisors, 
knowingly  votes  for  its  imposition,  cannot  object  to  its 
levy  upon  his  own  property70.  Prior  payments  of  a  tax 

64.  Union      Depot      Co.      v.      act   No.   376  of   Public   Acts   of 
Com'r,  118  Mich.  340;  People  v.      1897. 

Judge,  39   Mich.   197;   People  v.          67.     Westinghauser  v.  People, 

Howard,  73  Mich.  10;  Holden  v.  44  Mich.  269. 
Supervisors,  77  Mich.  202;  State          68.     See    Functions    of   Board 

v.   Berka,  20  Neb.  375;  State  v.  of   Review,  594   supra.     Louden 

Algood,  87  Tenn.  163;  Morrison  v.    East   Saginaw,   41    Mich.   18, 

v.  Railway  Co.,  96  Mo.  602.  27. 

65.  Auditor    General    v.    Bay         69.     Louden  v.  East  Saginaw, 
Co..  106  Mich.  662.  41   Mich.  18. 

66.  Jackson      City      v.      Co.          70.     Wood  v.   Norwood  Twp., 
Treasurer,  117  Mich.  305:  Local  52  Mich.  32. 


§  226  THE  LAW  OF  TAXATION  322 

assessed  in  the  wrong  locality  or  in  a  wrong  name  may 
be  shown  in  defense  of  a  seizure  for  the  tax71.  A  party 
in  possession  of  land  under  contract,  with  an  obligation 
to  pay  the  taxes,  cannot  let  the  taxes  on  the  land  be  re- 
turned and  the  land  be  sold  and  bid  in  by  a  third  party, 
and  set  this  title  up  against  the  owner72.  Where  the  audi- 
tor general,  in  excess  of  his  power,  issued  a  certificate  of 
error,  cancelling  a  deed  of  state  homestead  lands,  the 
receipt  of  the  back  taxes  by  the  auditor  general  will  not 
estop  the  state  from  relying  upon  the  designation  of  the 
lands  as  homestead  lands73.  Tax  payers  have  a  right  to 
presume  that  a  tax  spread  upon  the  roll  by  supervisors,  is 
legal;  and  the  payment  of  one  installment  of  a  tax  will 
not  estop  the  tax  payer  from  contesting  later  installments 
of  the  same  tax74. 

§226.     Estoppel  on  Drains. 

Where  parties  stand  by  and  know  that  the  drain  is  be- 
ing constructed,  and  wait  until  it  is  done,  or  nearly  so, 
they  are  thereafter  estopped  from  complaining78.  A 
conveyance  of  land  to  a  third  party  by  a  party  who  is 
estopped  from  contesting  a  drain  proceeding,  such  convey- 
ance being  for  the  purpose  of  contesting  such  proceedings, 

71.  Hood      v.      Judkins,      61  Mich.  67,  70;  Hall  v.  Slaybaugh, 
Mich.  575.  69     Mich.     484,     487;     Gillett    v. 

72.  Hubbard  v.  Shepard,  117  McLaughlin,      69      Mich.      547; 
Mich.  25 ;   Dubois  v.  Campau,  24  Moore   v.    Mclntyre,   110    Mich. 
Mich.  360;  Ward  v.  Nestell,  113  237:  Barker  v.  Vernon  Twp.,  63 
Mich.    185.  Mich.   516;    Freeman   v.   Weeks, 

73.  Jackson,    etc.,    R.    Co.    v.  45      Mich.      335;      Harwood      v. 
Solomon  Lumber  So.,  146  Mich.  Drain     Com'r,     51     Mich.     639; 
204.  Auditor    General    v.    Melze,    124 

74.  Indiana     Road     Machine  Mich.    285;    Atwell    v.    Barnes, 
Co.   v.    Keeney,    147    Mich.   184;  109   Mich.    10;   Walker  Twp.    T. 
involving  tax  to  pay  for  a  road  Thomas,  123  Mich.  290;  Auditor 
machine.  General     v.     Scully,     125     Mich. 

75.  Smith     v.      Carlow,      114  285. 


323  STATUTES  AND  ESTOPPEL  §  226 

places  the  vendee  in  no  better  position  than  was  his  ven- 
dor7*'. Parties  who  sign  a  petition  for  a  drain,  release  the 
right  of  way  and  assent  to  the  proceedings  to  lay  it  out, 
are  estopped  from  contesting  those  proceedings  which  they 
aided  in  obtaining.  They  would  not  be  estopped  from 
questioning  subsequent  proceedings  of  which  they  had  had 
no  notice,  as  an  assessment;  and  a  void  assessment  would 
be  set  aside  and  a  new  one  ordered  made  under  those  cir- 
cumstances77. A  party  over  whose  land  an  extension  of  a 
drain  was  abandoned,  cannot  raise  objections  to  a  jury 
that  was  called  and  acted  on  other  lands.  Being  present 
at  the  assessment,  he  could  not  wait  until  the  drain  was 
constructed  and  then  object  to  his  tax78.  Where  a  party 
neglects  to  take  the  statutory  certiorari,  with  full  knowl- 
edge of  the  situation,  he  will  thereafter  be  estopped  from 
bringing  his  bill  in  equity  79.  All  unexplained  and  unreason- 
able delay  acts  as  an  estoppel80.  Where  the  owner  changes 
the  course  of  a  drain  upon  his  own  premises  he  is  estop- 
ped, on  a  petition  to  deepen  and  widen,  from  saying  that 
it  was  not  located  where  he  dug  it81.  The  right  to  com- 
plain is  not  lost  by  delay  where  the  cause  of  complaint 
does  not  develop  until  after  the  work  is  done,  as  convert- 
ing a  pond  into  a  mud-hole82.  Parties  are  presumed  to 
ask  for  legal  proceedings,  and  are  not  estopped  by  irregu- 
larities, they  do  not  consent  to,  as  lack  of  notice  of  proceed- 

76.  Brown    v.    Hackett,    1S8  check  v.  Drain  Cotn'r,  42  Mich. 
Mich.   141.  105. 

77.  Cook  v.  Covert,  71  Mich.  80.     Clark  v.  Teller,  50  Mich. 
240,     251;     Lanning    v.     Palmer,  618;    Dunning   v.    Drain    Com'r, 
117    Mich.   529,  532.  44  Mich.  518. 

78.  Maybee   v.   Drain    Com'r,  81.     Freeman     v.     Weeks,    45 
45  Mich.  568.  Mich.    335;    Tinsman    v.    Probate 

79.  Swan     Creek     Twp.     T.  Judge,   Sup.   Ct.   File   No.   11565, 
Brown.     130     Mich.     382,     384:  not  reported. 

Moore   v.    Mclntyre.    110    Mich.          82.     Wright     v.     Rowley,     44 
237;  Wilson  v.  Woolman,  10  L.      Mich.  557. 
N.    183,    133    Mich.    350;    Will- 


g  226  THE  LAW  OF  TAXATION  324 

ings  in  the  probate  court,  if  they  take  action  in  time83. 
Bidding  in  contracts,  of  itself,  does  not  estop  a  person  if 
he  took  that  method  to  gain  time84.  A  license  to  dig  may, 
or  may  not,  constitute  an  estoppel.  If  the  party  granting 
the  license  used  due  diligence  in  discovering  the  irregu- 
larities complained  of,  he  would  not  be  estopped  from  con- 
testing the  proceedings85.  Where  a  drain,  which  diverts 
the  water  from  its  natural  course,  has  been  stopped  up  for 
some  time,  the  party  reopening  it  is  liable  for  any  damages 
it  may  cause.  No  estoppel,  by  reason  of  the  former  con- 
dition of  the  drain,  works  in  such  a  case8'.  Where  a  party 
sets  aside  a  special  tax  after  part  of  the  tax  has  been  col- 
lected, he  is  not  entitled  to  a  mandamus  to  compel  the 
payment  of  an  order  on  that  fund  though  he  received  the 
order  in  the  course  of  trade87.  A  party,  however,  on  the 
law  side  of  the  court,  has  the  opportunity  of  standing  upon 
his  legal  rights,  and  will  not  be  estopped  because  of  re- 
maining silent,  as  he  would  be  in  equity88.  Although  the 
commissioner  may  let  a  contract  without  proper  notice,  yet 
if  no  complaint  is  made  until  the  contract  is  completed, 
the  contractor  will  be  entitled  to  his  pay89. 

83.  Taylor     v.  Burnap,     39          87.     Mason  v.  Gladstone  City, 
Mich.    739.  93   Mich.   232. 

84.  Youngblood  v.     Sexton,          88.     Murphy    v.    Dobben,    137 
32   Mich.   406.  Mich.     565,  •  discrediting     dictum 

85.  Hopkins     v.  Briggs,     41      in    Smith   v.    Carlow,    114    Mich. 
Mich.  175.  70. 

86.  Chapel  v.  Smith,  80  Mich.          89.     Joliet  Bridge  Co.  v.  Fre«- 
100.   114.  man,  149  Mich.  274. 


CHAPTER  XIV. 
RECORDS. 


5227.  Records. 

{228.  Missing  Records. 

5229.  Qualification  of  Officers. 

5230.  Absence  of 

5231.  What  are 

5232.  Evidence  of. 

5233.  Time  of  Meeting. 

5234.  Collateral  Attack  of 
6235.  Amendments  of 

5236.  Signing,  and  Signatures  to 

6237.  Mistakes  in 

5238.  Presumptions  as  to  Assessments. 

5239.  Presumptions  as  to  Collection. 
§240.  Presumption  of  Existing  Records. 
5241.  Presumptions. 

CROSS-REFERENCES. 

Completeness  of  Drain  Records,  5295.  Filing  of  Drain  Records, 
5296.  Presumptions,  5371  Presumption  as  to  Drain  Records.  5304. 
Special  Assessment  Records,  5370. 


§227.     Records. 

Every  essential  proceeding  in  the  course  of  a  levy  of 
taxes  must  be  taken  in  conformity  to  the  requirements  of 
law ;  but  the  evidence  of  whether  or  not  this  has  been  done 
is  only  such  as  is  required  to  prove  similar  facts  in  other 
cases.  Whenever  the  law  requires  written  evidence  of  the 
action  taken  by  the  officers  in  making  such  assessments 
and  levies,  the  record  becomes  the  only  proper  and  legal 
evidence  of  these  facts.  While  the  proofs  of  such  action 
and  proceedings  taken  should  be  made  from  the  record, 
this  does  not  exclude  entirely  the  usual  presumptions  of 


§§§  228,  229,  230     THE  LAW  OF  TAXATION  326 

regularity  of  official  action  and  the  honest  purposes  of 
officers  whose  duty  it  is  to  take  the  requisite  action,  in  the 
proofs  to  be  made1. 

§228.     Missing  Records. 

Under  the  statute,  the  fact  that  any  particular  record 
cannot  be  found  does  not  raise  any  presumption  that  none 
had  been  made2.  The  absence  of  proof  on  file  of  the  pub- 
lication of  a  notice  does  not  raise  a  presumption  that  it 
was  not  published  as  required  by  statute,  in  the  absence  of  a 
requirement  that  such  proof  be  -filed3.  By  virtue  of  §99, 
C.  L.  §3922,  the  absence  of  a  warrant  from  the  roll  fur- 
nishes no  defense  to  proceedings  to  foreclose  the  tax  in 
equity4. 

§229.     Qualification  of  Officers. 

The  absence  of  a  record  showing  any  qualification  of 
an  officer  does  not  make  a  prima  facie  showing  that  such 
officer  did  not  qualify,  unless  the  statute  affirmatively  re- 
quires such  qualification  to  be  of  record.  The  fact  of 
qualification  may  be  proven  like  any  other  act  in  pais.  The 
absence  of  such  a  record  is  therefore  not  prima  facie  proof 
of  lack  of  qualification5. 

§230.     Absence  of  Records. 

In  the  absence  of  a  statute  to  the  contrary,  the  law 
presumes  that  all  officers  interested  with  the  custody  of 

1.  Miller    v.    Richland    Twp,  4.    Auditor     General     v.     Xor- 
72  Mich.  100.  rington,  140  Mich.  427. 

2.  See  §222,  post,  supra.    C.  L.  5.     Sibley    v.    Smith, .  2    Mich. 
1871,  §1131;  Stockle  v.  Silsbee,  41  487,  498;  First  National  Bank  v. 
Mich.  615.  St.   Joseph    Twp.,   46   Mich.    526; 

3.  Sherman     v.     Fisher,      138-  Newaygo  Mfg.  Co.  v.  Eichtenaw, 
Mich.  391;  Boyce  v.  Peterson,  84  81  Mich.  416. 

Mich.  490. 


RECORDS  §230 

public  files  and  records  will  perform  their  official  duty  by 
keeping  them  safely  in  their  offices.  When  a  paper  is  not 
found  where,  if  in  existence,  it  ought  to  be  deposited  or 
recorded,  the  presumption  arises  that  no  such  paper  was 
ever  in  existence.  Until  this  presumption  is  rebutted,  it 
must  stand  as  proof  of  such  non-existence0.  This  presump- 
tion, however,  was  changed  by  statute7,  so  that  thereafter 
a  missing  record  is  presumed  to  have  been  made  at  the 
proper  time.  The  effect  of  this  statute  was : 

1st.  To  provide  that  no  error  or  irregularity  in  mere 
matter  of  form  should  invalidate  a  tax  proceeding. 

2nd.  To  do  away  with  the  legal  rule  which  the  decisions 
had  previously  established,  that  a  sale  for  several  taxes 
one  of  which  was  illegal  or  had  been  paid,  should  be  void. 

3rd.  To  abolish  the  rule  that  where  a  record  is  not  to 
be  found  in  the  proper  office  it  must  be  accounted  for  be- 
fore it  can  be  assumed  that  it  ever  existed. 

It  does  not  waive  matters  of  substance,  as  a  signed  or 
verified  return8.  Where  a  roll,  however,  has  no  certificate 
of  the  supervisor  attached,  it  will  not  be  presumed  to  have 
been  originally  attached  to  the  roll  though  several  leaves 
of  the  roll  are  missing9 ;  and  when  one  insufficient  certi- 
ficate is  found,  another  good  one  will  not  be  presumed  to 
have  been  made10.  A  proper  paper,  not  in  its  proper  place, 
will  be  presumed  to  have  been  filed  where  it  belonged. 
Thus,  where  papers  belonging  in  the  county  clerk's  office 
were  found  in  the  treasurer's  office  without  a  file  mark. 


6.  See    8222.    supra.      Hall    v.  Woods  &  Co..  114  Mich.  1,  where 
Kellogg.  16  Mich.  135,  139;  Plaft  the  clerk  and  treasurer  were  al- 
v.  Stewart,  10  Mich.  260.  lowed   to  show   that   a   report  of 

7.  C.  L.  1871,  §1229.  sale  was  filed. 

8.  Upton  v.  Kennedy,  36  Mich.  9.     Newkirk  v.  Fisher,  72  Mich. 
215,   223:    Stockle   v.    Silsbee,   41  113. 

Mich.     615;     Hoffman     v.     Park,  10.     Case  v.  Dean,  ifi  Mich,  r: 


231  THE  LAW  OF  TAXATION 


it  was  presumed  that  they  had  been  properly  filed  with  the 
clerk;  and  printed  notice  detached  from  an  affidavit  was 
presumed  attached11.  Tax  records  of  the  chancery  court 
may  be  taken  into  the  treasurer's  office  when  not  needed 
in  the  clerk's  office12. 

§231.     Records.     What  Are. 

The  presence  of  a  quorum  of  a  board  will  be  presumed. 
The  lack  of  the  signature  of  the  presiding  officer  does  not 
vitiate  them13,  in  the  absence  of  a  statute.  The  statute, 
however,  now  requires  that  all  proceedings  of  the  board 
of  supervisors  shall  be  signed  by  the  chairman  and  clerk;. 
and  proceedings  not  so  signed  have  no  force  as  records14. 
A  book  kept  in  the  regular  course  of  business  in  a  public 
office  is  admissible  in  evidence  though  it  is  not  required 
by  statute  to  be  kept.  To  render  such  a  book  admissible 
it  must  appear  to  have  been  one  of  the  regular  office  books 
kept  for  making  such  entries,  as  a  sales  book  in  the  county 
drain  commissioner's  office15.  The  state  tax  land  book  is 
a  public  record16.  The  recording  of  the  verbal  report  of 
the  highway  commissioner  has  no  legal  affect  as  a  record. 
It  is  a  nullity17.  Although  a  supervisor's  certificate  may  be 
dated  the  last  day  of  the  review,  it  will  be  presumed  to 
have  been  made  after  the  review  closed18.  A  tax  state- 


11.  Mann  v.  Carson,  120  Mich.  Lacey  v.  Davis,  4  Mich.  140. 
631.      In    Silsbee    v.    Stockle,    41  14.     H.    S.    §501;    C.    L.    §2502. 
Mich.  615,  it  is  held  that  the  tes-  Weston  v.  Monroe,  84  Mich.  341. 
timony    of    a    supervisor   that    he  15.     Grosbeck     v.      Seeley,      13 
does  not  remember  a  certain  cer-  Mich.  329,  341 ;   Burton  v.  Tuite, 
tificate  which  was  supposed  to  be  78  Mich.  363. 

before  the  board,  does  not  rebut  •  16.     Aitcherson  v.   Huebner,  90 

the  presumption  that  it  was  there.  Mich.  643. 

12.  Mersereau    v.    Miller,    112  17.    Mich.  Land  &  Iron  Co.  v. 
Mich.  103.  La  Anse  Twp.,  63  Mich.  700. 

13.  School    Dist.    v.    Clark,    90  18.     Yelverton     v.      Steele,     36 
Mich.   435,   as   to   school   records.  Mich.  62. 


329  RECORDS  §§  232, 233 

mcnt  made  under  C.  L.  §3843,  if  delivered  to  the  super- 
visor, though  not  sworn  to,  is  a  public  record  which  it 
will  be  a  criminal  offence,  under  C.  L.  §11301,  to  carry- 
away,  if  such  carrying  away  is  accompanied  by  a  criminal 
intent1*. 

^232.     Records.     Evidence  of, 

Where  the  custodian  of  a  record  certifies  that  it  is 
all  of  the  record  in  reference  to  a  given  subject,  it  is  ad- 
missible in  evidence  without  producing  a  copy  of  the  entire 
record;  and  the  clerk  may  testify  that  the  signatures  are 
wanting  on  the  original  record.  The  contents  of  an  official 
record  may  be  proven  by  the  testimony  of  any  competent 
person  that  he  has  examined  it  and  that  it  shows  no  ac- 
tion20. The  record  as  made  must  control.  It  cannot  be  ex- 
plained or  construed  by  parol  testimony31.  Parol  testi- 
mony is  admissible,  however,  to  show  that  a  portion  of  the 
proceedings  of  a  council  were  omitted  from  the  record33, 
or  that  an  ordinance  was  not  recorded33.  Adjournments 
of  the  board  of  state  tax  commissioner  cannot  be  shown  by 
parol  proof34. 

§233.     Records.     Time  of  Meeting, 

Where  a  record,  though  informal,  bears  date  of  the  an- 
nual township  meeting,  and  shows  that  action  was  taken 
by  the  electors,  it  will  be  presumed  that  the  action  was 

19.  People  v.  Jewell,  138  Mich.  628,  holding  that  a  clerical  error 
620.  could  not  be  explained. 

20.  Maxwell  v.  Paine,  53  Mich.  22.     Wheat  v.   Tine,  149   Mich. 
30;    Hoffman   v.    Pack   Woods   &  314. 

Co.,  114  Mich.  1.  23.    Stevenson  v.   Bay  City.  26 

21.  Harts    v.     Mackinac     Isl.,      Mich.  44. 

131   Mich.   680 ;   Moser  v.   White,          24.     Delray  Land  Co.  v.  Spring- 
29  Mich.  59;  Mich.  Land  &  Iron      wells  Twp..  149  Mich.  397. 
Co.   v.    Republic   Twp.,   65    Mich. 


§§  234,  235  THE  LAW  OF  TAXATION  330 

taken  at  the  time  prescribed  by  statute*5.  The  record  need 
not  show  the  fact  of  an  adjournment  to  a  subsequent  date. 
This  fact  may  be  shown  by  parol28. 

§234.     Records.     Collateral  Attack  of, 

Old  proceedings  to  levy  taxes  cannot  be  impeached  by 
parol  testimony.  To  permit  the  contrary,  would  amount 
to  a  surrender  of  the  kind  of  evidence  provided  by  statute, 
in  favor  of  another  and  very  inferior  kind  and  of  most  un- 
certain character.  The  effectiveness  of  official  certificates 
and  the  stability  of  titles  would  depend  upon  what,  after 
many  years,  could  be  shown  against  them  by  recollection 
of  witnesses27.  Nor  will  parol  proof  be  received  that  the 
valuation  on  property  in  the  roll  was  fifty  per  cent  of  its 
true  valuation28.  The  same  rule  applies  to  the  certificate 
of  equalization29. 

§235.     Records.     Amendments  of, 

A  report  of  sale  cannot  be  amended  after  the  period  of 
redemption  has  expired30.  An  affidavit  of  publication  can- 
not be  amended  after  decree31.  The  powers  of  the  board 
to  authorize  the  making  of  a  new  roll  does  not  authorize 
the  recall  and  alterations  in  the  old  roll32.  A  subsequent 


25.  Auditor    General    v.   Long-  recent   taxes. 

year,  110  Mich.  223.  28.     Williams      v.      Mears,      61 

26.  Taymouth   Twp.    v.    Koeh-  Mich.  86. 

ler,  35  Mich.  24;   School  Dist.  v.  29.     Case  v.  Dean.  16  Mich.  12; 

Clark,  90  Mich.  435,  437.  Grand     Rapids    v.     Wellman,    84 

27.  In    Blanchard    v.    Powers,  Mich.     234,     242 ;     Thompson     v. 
42  Mich.  619,  624,  it  was  held  im-  Johnson,  75  Mich.  181. 

proper  to  impeach  the  tax  roll  af-  30.    Jenkinson  v.  Auditor  Gen- 
ter   20   years   by   the   parol    testi-  eral,  104  Mich.  34. 
mony  of  the  old   supervisor  that  31.     Benedict   v.    Auditor    Gen- 
he  did  not  assess  property  at  its  eral,  104  Mich.  269. 
true  cash  value.     Gamble  v.  East  32.    Ferton  v.  Feller,  33  Mich. 
Saginaw,   43   Mich.   357,   involving  199. 


331  RECORDS  §  23f, 

council,  composed  of  less  than  a  majority  of  the  old  coun- 
cil, cannot  amend  a  record  of  the  old  council33.  If  a  war- 
rant is  wrongly  dated,  the  correct  date  may  be  shown  from 
the  council  proceedings34.  An  ordinance  regularly  passed 
by  the  council  will  not  be  invalidated  because  incorrectly 
copied  into  the  record  book.  The  record  may  be 
amended35.  Neither  will  it  be  invalidated  because  the  clerk 
fails  to  certify  thereon,  or  on  the  record,  the  time  when 
it  was  presented  to  the  mayor  for  his  approval36. 

§236.     Signing  and  Signatures. 

A  roll  not  signed  by  the  assessors  is  void,  and  is  not 
cured  by  their  signatures  attached  to  the  certificate  on  the 
roll37.  In  1842  the  proceedings  of  the  board  of  super- 
visors did  not  require  the  signatures  of  the  chairman  or 
clerk38,  but  now  they  are  required  by  statute  to  be  signed 
by  those  officers39.  Records  of  school  district  meetings 
are  not  required  to  be  signed  by  those  officers40.  Equity 
will  not  enjoin  a  tax  because  the  certificate  of  equalization 
attached  to  the  roll  was  not  signed41;  but  in  an  action  at 
law  such  lack  of  signature,  would  be  fatal43.  Unless  rights 
have  intervened  or  should  have  accrued,  an  officer  may 
generally  supply  his  missing  signature  to  a  record  during 
his  term  of  office.  The  clerk  and  chairman  of  the  board 
of  supervisors  may  sign  the  records  during  their  term  of 

33.  Pontiac      v.      Axford,      40  38.    Lacey    v.    Davis,    4     Mich 
Mich.  69.  140. 

34.  Gratwick    Lumber    Co.    v.  39.    Weston     v.      Monroe.     84 
Oscoda.  97  Mich.  221.  Mich.  341. 

35.  Kenaston     v.     Rikcr,     I4f>  40.     School  District  v.  Dark.  On 
Mich.  163;  Stevenson  v.  Bay  City.  Mich.  435. 

26  Mich.  45.  41.     Burt    v.    Auditor    General. 

36.  Boehme    v.    Monroe    Gty,      39  Mich.  126. 

106  Mich.  401.  42.     Westbrook     v.     Miller.    64 

37.  Sibley    v.    Smith,    2    Mich.      Mich.  129. 
487. 


§§§  237,  238,  239    THE  LAW  OF  TAXATION  332 

office43.  The  signature  of  a  deputy  county  clerk  may  be 
supplied  at  a  different  term  than  the  one  in  which  the 
record  was  made,  and  after  suit  brought44. 

§237.     Records.     Mistakes  in, 

Where  a  warrant  is  wrongly  dated,  the  correct  date  may 
be  shown  from  the  council  proceedings45.  But  where  a 
resolution,  by  mistake,  specifies  the  succeeding  instead  of 
the  present  year,  the  error  cannot  be  explained  or  shown48. 

§238.     Presumptions. 

The  tax  rolls  are  prima  facie  evidence  of  the  regularity 
of  the  tax47.  Hence,  taxes  will  be  presumed  to  be  assessed 
for  a  public  purpose  and  not  for  a  purpose  forbidden  by 
law48.  Inasmuch  as  the  board  of  supervisors  have  no 
control  over  township  taxes,  a  township  tax  will  be  pre- 
sumed legal  without  an  order  or  certificate  from  the 
board49.  There  is  no  presumption,  however,  that  a  tax 
was  authorized  for  a  larger  amount  than  appears  in  the 
record  of  the  body  having  authority  to  raise  the  tax50. 

• 
§239.     Presumptions  as  to  Collections. 

Where  money  for  taxes  is  paid  to  the  collector,  it  will 

43.  Boyce  v.  Auditor  General,      v.  Metcalf,  4  Mich.  579. 

90  Mich.  314,  326;   Auditor  Gen-  48.     Wright     v.     Dunham,     13 

eral  v.  Hill,  97  Mich.  80.  Mich.    414;    Attorney    General    v. 

44.  Sheldon    v.    Marion    Twp.,  Bay  County,  34  Mich.  46 ;  Penin- 
101  Mich.  256.  sular    Iron    Co.    v.    Crystal    Fall 

45.  Gratwick    Lumber    Co.    v.  Twp.,  60  Mich.  510. 

Oscoda,  97  Mich.  221.  49.     Robbins      v.      Barren,      33 

46.  Mich.  Land  &  Iron  Co.  v.  Mich.  124;  Upton  v.  Kennedy,  36 
Republic  Twp.,  65  Mich.  628.  Mich.    215;    Auditor    General    v. 

47.  Wattles      v.      Lapeer,      40  McArthur,  87  Mich.  457;  Auditor 
Mich  624;  Decatur  v.  Copley,  133  General   v.   Hill,   98   Mich.   327. 
Mich.   546 ;    Hood   v.   Judkins,   61  50.    Williams      v.      Mears.      61 
Mich.   575;   Muskegon   v.   Martin  Mich.  86;  Case  v.  Dean,  16  Mich. 
Lumber  Co.,  86  Mich.  625 ;  Tweed  12. 


333  RECORDS  §§  240, 

be  presumed  to  have  been  paid  to  the  municipality51.  On 
a  return  of  the  delinquent  tax,  it  will  be  presumed  that  the 
collector  made  a  proper  demand  for  the  tax52.  There  is  no 
presumption  that  a  tax  was  paid83.  After  a  levy  for  the 
tax,  there  will  be  presumed  to  be  no  cloud  upon  title,  since 
the  presumption  then  arises  that  the  levy  will  satisfy  the 
tax54. 

£240.     Presumptions  of  Existing  Records. 

Until  the  statute  changed  the  rule,  the  law  presumed 
that  all  officers  entrusted  with  the  custody  of  public  files 
and  records,  would  perform  their  official  duty  by  keeping 
them  safely  in  their  offices.  When  a  paper  was  not  found 
where,  if  in  existence,  it  ought  to  have  been  recorded  or  de- 
posited, the  presumption  arose  that  no  such  document  had 
ever  been  in  existence.  Until  this  presumption  was  reoutted, 
it  stood  as  proof  of  such  non-existence65.  Under  the 
statute,  however,  the  rule  is  reversed.  There  is  now  no 
presumption  that  because  papers  pertaining  to  the  levy  of 
a  tax  cannot  be  found  that  they  are  not  in  existence.  The 
presumption  is  that  they  were  in  existence5',  and  conse- 
quently, all  taxes  are  presumed  to  be  valid57. 

£241.     Presumptions. 
It  will  be  presumed  that  every  officer  purporting  to  act, 

51.  Nicodemus    v.    East    Sagi-  Kennedy,  36  Mich.  215 :  Stockle  v. 
naw,    25    Mich.    456.        See    §222,  Silsbee ,    41     Mich.    615;    Hogels- 
supra.  kamp  v.  Weeks.  37  Mich.  422. 

52.  Dickison    v.    Reynolds,    48  56.     C.  L.  1871,  Si  129.     Hogels- 
Mioh.   158.  kamp    v.    Weeks,    37    Mich.    422; 

53.  Auditor    General    v.    Lake  Stockle  v.  Silsbee,  44  Mich.  561 ; 
George,  etc.,  Ry.,  82  Mich.  426.  Boyce    v.     Auditor     General.    90 

54.  Henry      v.      Gregory,      29  Mich.  314 ;  Upton  v.  Kennedy,  36 
Mich.  68.  Mich.  215. 

55.  C.  L.  1871.  81129.    Hall  v.  57.    Auditor  General  v.   Meier, 
Kellogg,    16   Mich.    135;    Platt   v.  95  Mich.  128;  Sherman  v.  Fisher. 
Stewart,  10  Mich.  260;  Upton  v.  138  Mich.  391. 


§  241  THE  LAW  OF  TAXATION  334 

duly  qualified  for  his  office58.  A  record  showing  the  action 
of  the  electors,  bearing  a  certain  date,  will  be  presumed 
to  mean  that  the  electors  acted  on  that  day59.  It  will  be 
presumed  that  the  collecting  officer  made  a  personal  de- 
mand for  the  tax60.  There  is  a  presumption  that  wild 
lands,  contiguous  in  one  large  tract  are  of  equal  value*1 ; 
and  if  they  are  omitted  from  the  rolls,  the  law  presumes 
either  that  such  omission  was  authorized,  or  that  the  lands 
were  worthless62.  Although  the  highway  commissioner 
orders  the  assessment  of  an  excessive  labor  tax,  yet,  in  the 
absence  of  the  roll  there  is  no  presumption  that  the  illegal 
excess  was  spread63.  Where  the  records  are  silent,  there 
is  no  presumption  that  the  electors  voted  the  township  ex- 
penses64. No  presumption  arises  from  the  records  of  the 
board  of  supervisors  that  an  excessive  township  tax  was 
levied65.  Where  the  township  clerk  certified  that  the  com- 
missioner of  highways  found  the  expenditures  to  be 
$1,000.00,  in  the  absence  of  a  counter  showing,  it  was 
presumed  that  the  commissioner  had  the  orders  before  him 
when  he  made  the  estimates66.  There  is  no  presumption 
that  road  districts  remain  the  same  each  year67.  It  will 
be  presumed  that  all  necessary  facts  exist  to  authorize  the 


58.  Bank  of   St.  Joseph  v.   St.  Peninsular    Iron    Co.    v.    Crystal 
Joseph  Twp.,  46  Mich.  526  Sibley  Falls  Twp.,  60  Mich.  510. 

v.    Smith,   2   Mich.   486;    Mills   v.  62.     Perkins      v.      Nugent,      45 

Richland  Twp.,  72  Mich.  100.  The  Mich.  156. 

appointment  of  a  member  of  the  63.     Hoffman    v.    Lynburn,    104 

board  of  review  was  not  of  rec-  Mich.  494. 

ord.       Newaygo     Manufacturing  64.    Williams     v.      Mears,     61 

Co.  v.  Eichtenaw,  81  Mich.  416.  Mich.  86. 

59.  Auditor   General   v.    Long-  65.     Boyce  v.  Sebring,  66  Mich, 
year,  110  Mich.  223.  210. 

60.  Dickison    v.    Reynolds,    48  66.    Longyear  v.   Auditor   Gen- 
Mich.  159.  eral,  72  Mich.  415. 

61.  Sawyer-Goodman     Co.     v.  67.    Deerfield  Twp.  v.   Harper, 
Crystal  Falls  Twp.,  56  Mich.  597;  115  Mich.  678. 


335  RECORDS  §  241 

raising  of  a  tax ;  and  only  the  essentials  required  by  statute 
need  appear  of  record68. 

68     See  5114,  supra.    Diamond      Match    Co.    v.    Ontonagon,    140 

Mich.  183. 


PART  TWO 


DRAIN  TAXES 


CHAPTER  XV. 
JURISDICTION  AND  EX  PARTE  PROCEEDINGS. 

§242.     Qualification  of  Drain  Commissioner. 

§243.     Appointment  of  Special  Drain  Commissioner. 

§244.     Jurisdiction. 

§245.    Jurisdiction .   County  and  Township  Drains. 

§246.     Jurisdiction.   Public  Health. 

§247.     Jurisdiction.  Board  of  Health. 

§248.     Action  on  One  Petition. 

§249.     Description  in  Pettition. 

§250.     Signers  to  Petition.    . 

§251.     Recitals  in  Petition. 

Form  of  Petition  for  Drain. 
§252.     Surplusage  in   Petition. 

Form  of  Petition  for  Cleaning  Out  Drain. 
§253.     Petition  to  Deepen,  Widen  or  Clean  Out. 
§254.     Change  of  Drain. 
§255.     Intersection  of  Drains. 
§256.     Survey. 
§257.     First  Order. 

Form    of    First    Order. 
§258.     Necessity  of  Drain. 
§259.     Release  of  Right  of  Way. 

Form  for  Release  of  Right  of  Way. 
§260.     Attempt  to  Obtain  Release.         • 
§261.     When  Release  Unnecessary. 

§242.     Qualification  of  Drain  Commissioners. 

Under  the  law  of  1861,  the  board  of  supervisors  had  no 
authority  to  appoint  one  of  their  own  number  as  commis- 
sioner. It  was  the  purpose  of  the  law  to  impose  upon  the 


337 


JURISDICTION,  ETC. 


board  the  duty,  as  a  wholly  independent  and  separate  body, 
to  supervise  the  action  of  the  drain  commissioners,  and  to 
check  or  restrain  any  of  their  action  which  they  should  deem 
extravagant  or  injudicious.  It  contemplated  the  un- 
prejudiced separate  action  of  two  separate  boards  upon  all 
matters  on  which  the  drain  commissioners  were  authorized 
to  act.  This  object  would  be  defeated  if  the  board  of  super- 
visors could  appoint  their  own  members  as  members  of  the 
board  of  drain  commissioners.  If  these  commissioners  could 
sit  in  the  board  of  supervisors,  they  might  vote  upon  the 
approval  of  their  own  acts.  The  duties  of  the  two  offices 
are  incompatible1.  The  fact  that  the  sureties  on  the  com- 


1.  C.  L.  54310,  as  to  present 
qualification.  Act  216  of  Laws  of 
1861.  Kinyon  v.  Duchane,  21 
Mich.  497,  499.  In  this  case  a  tax 
spread  by  such  a  commissioner  is 
held  invalid.  In  Zabel  v.  Harsh- 
man,  68  Mich.  273,  it  is  held  that 
the  fact  that  an  old  drain  com- 
missioner was  a  supervisor  could 
not  be  shown  collaterally,  many 
years  after,  to  avoid  his  proceed- 
ings. 

The  first  drain  law  was  passed 
in  1819,  authorizing  the  super- 
visor to  "dig  in  the  highways," 
if  necessary,  when  he  could  Ho 
so  with  the  least  disadvantage  to 
the  owners  of  the  land.  (Territo- 
rial Laws,  Vol.  1,  p.  453-4).  In 
1827,  the  Territorial  legislature 
authorized  the  owner  of  premises 
to  call  in  the  fence  viewers  and 
establish  a  drain  on  the  line  be- 
tween himself  and  an  adjoining 
owner.  (Laws  of  1827,  Vol.  2, 
p.  325).  In  1839,  an  owner  who 
desired  a  drain  across  the  prop- 
erty of  another  person,  could 
apply  to  a  justice  of  the  peace  to 
determine  the  damages.  The 
applicant  could  then  pay  the 
<22) 


damages  and  dig  the  drain  at  his 
own  expense.  The  laws  of  1847, 
(p.  164)  provided  for  the  appoint- 
ment of  three  county  commission- 
ers, but  contained  no  provision 
for  condemning  lands.  In  1857, 
provision  was  made  for  the 
appointment  of  three  county  drain 
commissioners  having  somewhat 
more  defined  powers.  (Laws  of 
1857,  p.  431).  In  1859,  the  town- 
ship highway  commissioners  were 
made  township  drain  commission- 
ers. In  case  a  jury  was  called, 
they  selected  the  names  from 
which  to  strike  the  jury.  (Laws 
of  1859,  p.  1064).  This  system, 
with  amendments,  was  in  force 
until  1871.  In  1861,  the  county 
drain  commissioners  were  reduced 
in  number  from  three  to  one. 
They  were  authorized  to  strike  a 
jury  in  a  similar  manner  to  the 
highway  commissioners.  (Laws 
of  1861.  p.  453).  In  1857,  the 
office  of  township  drain  commis- 
sioner was  made  elective.  (Laws 
of  1875,  p.  166).  In  1883,  the 
township  drain  commissioner  was 
allowed  to  finish  county  drains 
where  there  was  no  county  com- 


§  242  THE  LAW   OF  TAXATION  338 

missioners  bond  did  not  justify  does  not  necessarily  vacate 
the  appointment,  if  the  sureties  qualify  after  notice.  If, 
after  notice,  they  did  not  qualify,  the  commissioner  could 
be  removed  by  the  proper  authorities.  The  courts  gener- 
ally hold  that,  even  though  the  statute  expressly  provides  that 
upon  a  failure  to  give  a  bond  within  the  time  prescribed,  the 
office  shall  be  deemed  vacant,  and  may  be  filled  by  appoint- 
ment, the  default  is  a  ground  for  forfeiture  only,  and  not  a 
forfeiture  ipso  facto,  and  that  if,  notwithstanding  the  de- 
fault, the  state  or  other  power  sees  fit  to  excuse  the  de- 
linquency by  granting  the  officer  his  commission,  the  defects 
of  his  title  are  cured,  and  it  is  a  title  de  jure,  having  relation 
back  to  the  time  of  his  election  or  appointment3.  A  county 
drain  commissioner  cannot  act  upon  a  drain  in  which  he  is 
personally  interested.  The  maxim  that  no  man  shall  be 
judge  in  his  own  cause  is  so  deeply  rooted  in  the  common 
law  that  it  cannot  be  overlooked  anywhere,  where  impartial 
justice  is  one  of  the  objects  to  be  attained3.  This  principle 
has  found  express  recognition  in  our  statute,  which  declares 
that  no  judge  of  any  court  can  sit  as  such  in  any  cause  in 
which  he  is  a  party,  or  in  which  he  is  interested,  and  al- 
though the  board  may  not  be  considered  as  having  tech- 
nically constituted  a  court  within  the  meaning  of  this  act, 
the  principle  itself,  which  derives  no  aid  from  legislation, 
extends  beyond  the  words  of  the  statute,  and  asserts  itself 
wherever  judicial  powers  are  employed  by  a  body  appointed 


missioner.    (Laws  of  1883,  p.  198).  of  1887,  Act.  254.) 

The    office    of    township    drain  2.     Bennett  v.  Benfield,  80  Mich, 

commissioner      was      first      made  265,    269 ;    McGregor    v.    Gladwin 

optional      with      the      townships,  Board,  37  Mich.  388. 

(Laws    of    1885,    No.    227),    and  3.     Zabel      v.      Harshman,      68 

then  their  office  was  abolished,  all  Mich.    273 ;    Lickley    v.    Bishopp, 

drains  formerly  under  their  juris-  14  L.  N.  735,  150  Mich.  256,  where 

diction  being  turned   over  to  the  the  commissioner  owner  a  mort- 

county  drain  commissioner.    (Laws  gage  on  premises  benefited. 


JIRISDICTION,  ETC.  §243 

by  law.  The  court  ought  not  to  be  astute  to  discover  re- 
fined and  subtle  distinctions  to  save  a  case  from  the  opera- 
tion of  the  maxim,  when  the  principle  it  embodies  bespeaks 
the  propriety  of  its  application.  The  immediate  rights  of  the 
litigants  are  not  the  only  objects  of  the  rule.  A  sound  pub- 
lic policy,  which  is  interested  in  preserving  every  tribunal 
appointed  by  law  from  discredit,  imperiously  demands  its 
observance4.  Act  No.  448  of  Local  Acts  of  1903,  provid- 
ing for  the  election  of  a  county  drain  commissioner  in  Ber- 
rien  county,  is  valid,  and  repeals  by  implication,  §1  of  Chap. 
II,  of  Act  272,  of  Public  Acts  of  1899,  relative  to  the  term 
of  office  of  the  commissioner.  The  effect  of  the  local  act 
was  to  shorten  the  term  of  the  prior  commissioner5.  The 
drain  commissioner  has  no  such  vested  rights  in  the  func- 
tions of  his  office  that  his  duties  may  not  at  any  time  be 
suspended,  restricted,  or  enlarged6. 

§243.     Appointment  of  Special  Drain  Commissioner. 

Even  though  the  probate  judge  should  have  power  to  ap- 
point a  special  county  drain  commissioner  to  act  in  two 
counties,  such  appointment  is  invalid  when  made  ex  parte, 
without  notice  to  any  one.  Notice  is  always  necessary  when 
it  is  sought  to  deprive  the  citizen  of  his  property;  and  if 
the  notice  is  not  expressly  provided  fof  in  the  law  itself,  it 
is  in  all  such  cases  necessarily  implied,  and  the  failure  to 
give  such  notice  renders  the  proceedings,  if  otherwise  regu- 
lar, null  and  void.  The  commissioner  is  the  agent  of  the 
county  or  counties,  appointed  to  do  a  certain  piece  of  work, 
which,  when  completed,  ends  his  mission.  The  application 

4.     Stockwell    v.    White    Lake  5.     Attorney    General    v.    Bur- 

Twp.    Board,   22   Mich.   341,   350;  bank,  141  Mich.  438. 

Peninsular    Railway    v.    Howard,  «.    Rice  v.  Probate  Judge,   141 

20  Mich.  18.  Mich.  «93. 


§  243  THE  LAW   OF  TAXATION  340 

to  the  judge  of  probate  must  show  that  the  persons  who 
sign  the  petition  for  the  appointment  of  such  special  com- 
missioner must  show,  on  its  face,  that  the  applicants  are 
free-holders  of  the  country  or  counties  to  be  affected.  This 
petition  is  to  put  the  officer  in  motion,  and  is  the  basis  of 
his  authority  to  enter  upon  the  course  of  proceedings  to 
establish  a  watercourse  or  locate  a  ditch7.  The  fact  that 
the  special  drain  commissioner  proceeded  to  act  without 
qualifying  may  be  shown  in  an  action  to  set  aside  his  pro- 
ceedings8. It  is  competent  for  the  legislature  to  provide  for 
the  election  of  county  drain  commissioners  by  the  people, 
direct;  and  it  may  cut  down,  limit,  abridge,  or  extend  the 
term  of  any  officer  it  has  created,  if  not  prohibited  by  the 
constitution.  In  accordance  with  this  power,  it  may  pro- 
vide that  the  drain  commissioner  elected  shall  take  his  office 
on  the  January  following  such  election,  although  his  pre- 
decessor had  been  previously  appointed  by  the  board  of 
supervisors,  under  a  prior  statute,  to  serve  for  two  years, 
only  one  year  of  which  time  had  expired9.  The  appoint- 
ment of  a  county  drain  commissioner  by  the  governor  of 
the  state  cannot  be  sustained  upon  the  ground  of  an  exist- 
ing exigency ;  but  such  officer  is  not  an  ordinary  local  officer, 
but  one  acting  by  virtue  of  the  police  powers  of  the  state 
and  exercising  its  functions  for  the  benefits  of  the  public 
health.  The  state  is  not  limited  to  any  particular  method  or 
set  of  officials  by  and  through  whom  it  shall  perform  its 
functions  in  the  interest  of  the  public  welfare.  The  legis- 
lature may  provide  any  suitable  and  proper  method  within 
the  limitations  of  the  power  to  be  exercised ;  and  an  appoint- 

7.     Present    law    in    Act    27    of  8.     Whiteford  Twp.  v.  Probate 

Laws  of  1901;   Corey  v.   Probate  Judge,  53  Mich.  130,  133. 

Judge,    56   Mich.   524 ;    Whiteford  9.     Attorney  General  v.  Stryker, 

Twp.  v.  Probate  Judge,  53  Mich.  141  Mich.  437;   Attorney  General 

130,  133.  v.  McGear,  146  Mich.  45. 


341  JURISDICTION,  ETC.  §  244 

ment  by  the  governor  is  within  those  powers10.  The  statute 
does  not  require  a  special  county  commissioner  to  file  his 
oath  of  office,  nor  does  it  disqualify  a  county  road  commis- 
sioner from  acting  as  special  county  drain  commissioner11. 

§244.     Jurisdiction.     Territorial. 

The  county  system  of  drainage  of  1869,  and  the  township 
system  of  1871,  are  separate  and  independent.  While  the 
township  drain  commissioner  is  confined  to  his  township 
insofar  as  he  affects  the  right  or  burdens  of  the  tax  payers, 
the  fact  that  he  extended  a  drain  beyond  his  township  would 
not  vitiate  his  proceedings  if  it  was  done  with  the  consent 
of  those  in  the  other  township,  and  without  cost  to  the  tax 
payers  of  his  own  township13.  Under  our  constitution  each 
township  is  a  separate  municipality,  whose  officers  are  elected 
by  town  residents,  and  who  are  themselves  residents.  No 
person  not  living  in  the  township  has  any  voice  in  its  affairs. 
No  instance  has  ever  been  known  in  our  history  where  a 
town  or  town  representative  has  been  allowed  to  exercise 
any  governmental  powers  in  another  town.  It  has  always 
been  understood  that  in  providing  as  it  does,  for  the  or- 
ganization and  incorporation  of  townships,  the  constitution 
dealt  with  them  as  recognized  and  ancient  municipal  bodies, 
the  substantial  character  of  which  was  intended  to  be  per- 


10.  Alexander  v.  McGear,  146  ship    drain    commissioners.     Act 
Mich.  45,  holding  it  constitutional  227  of  Public  Acts  of  1885,  3  H.  S. 
to  provide  for  the  appointment  of  §1740a7,  limits  the  township  drain 
drain       commissioner       by       the  commissioner    to    drains    having 
Governor,    constcuing    Local    Act  their     commencement,      terminus 
592    of    Public    Acts    of   1905,   7n  and  route  within  the  township,  as 
re  Livingston  Co.  well  as  requiring  all  lands  liable 

11.  Auditor    General    v.    Bolt,  to  an  assessment   for  benefits  to 
147     Mich.     2S3.       The     law     of  be  situated  within  the  township. 
1881    does    not    define    the    jur-  12.     Davidson  v.  Otis,  24  Mich, 
isdiction    of    county    and    town-  23. 


S  245  THE  LAW   OF  TAXATION  342 

petuated.  To  allow  one  township  or  its  officers  to  meddle 
in  the  arrangement  of  public  interests  in  others,  to  levy  taxes 
against  them  or  their  people,  would  be  subversive  of  their 
independent  character.  Such  a  power  cannot  be  inferred. 
Such  powers  would  be  a  direct  and  immediate  interference 
with  the  independence  of  other  townships,  and  an  exercise 
of  some  of  the  most  important  governmental  powers  of  the 
state  over  people  and  municipalities  which  have  no  voice, 
direct  or  indirect,  in  the  election  or  appointment  of  the  func- 
tionary exercising  them.  If  such  a  jurisdiction  can  be  given 
to  a  township  officer,  outside  of  the  township,  it  is  impos- 
sible to  find  any  power  that  cannot  be  given  them  in  any 
part  of  the  state.  Such  a  grant  to  a  local  officer  is  too 
repugnant  to  our  political  system  to  find  support  anywhere13. 
Where  a  drain  is  wholly  within  the  limits  of  an  incorporated 
city,  the  county  drain  commissioner  has  no  jurisdiction  to 
act.  There  is  no  sound  reason  for  holding  that  the  legisla- 
ture intended  to  confer  the  extraordinary  power  upon  this 
officer  to  enter  the  large  cities  of  the  state  and  perform  the 
functions  of  local  self-government  which  have,  from  the  be- 
ginning of  the  state,  been  conferred  upon  the  municipalities 
themselves14.  The  county  drain  commissioner  has  juris- 
diction over  a  water  course  on  which  he  has  a  petition  to 
act,  and  may  file  a  bill  to  restrain  its  obstruction148-  The 
drain  commissioner  has  jurisdiction  to  construct  a  public 
drain  in  a  public  highway.  It  has  been  the  policy  of  the 
state,  from  territorial  times,  to  use  the  highways  for  drain- 
age purposes.  The  municipality  may  erect  barriers  along 

such  drains  if  it  so  desires15  . 

• 

13.  Robertson     v.     Baxter,     57       v.  Weilnan,  15 -L.  N.  — 

Mich.  127.  15.     Kiley   v.    Bond,    114    Mich. 

14.  Mason  v.  Detroit,  etc.,  Ry.,       447;    Conrad   v.    Smith,   32    Mich. 
104  Mich.  631.  429. 

14a.     Pere    Marquctte    R.    Co. 


JURISDICTION,  ETC.  §240 

§245.     Jurisdiction.     County  and  Township  Drains. 

Under  the  original  act  of  1885,  the  jurisdiction  over  the 
two  kinds  of  drains  is  very  strictly  defined.  A  township 
drain  commissioner  had  no  jurisdiction  over  a  county  drain 
unless  the  county  drain  is  first  vacated  or  abandoned,  even 
though  the  entire  drain  and  lands  affected  thereby  were  in 
the  one  township.  The  fact  that  there  was  no  county  drain 
commissioner  within  that  county  did  not  change  the  rights 
of  the  township  drain  commissioner16.  A  state  drain  was 
under  the  jurisdiction  of  either  township  or  county  drain 
commissioner,  depending  upon  whether  or  not  the  drain 
and  the  lands  affected  thereby  were  all  in  one  township17.  A 
township  drain  commissioner  had  no  jurisdiction  to  act  upon 
a  drain  or  assess  a  tax,  beyond  the  limits  of  his  township. 
L'nder  our  constitution  each  township  is  a  separate  munici- 
pality, whose  officers  are  elected  by  the  town  residents,  and 
who  are  themselves  residents.  The  officers  of  one  township 
cannot  meddle  in  the  public  interests  of  another  township18. 
The  joint  action  of  township  drain  commissioners  in  dif- 
ferent townships,  in  constructing  a  drain  traversing  their 
townships,  is  without  jurisdiction  and  void19.  This  dis- 
tinction, however,  no  longer  exists,  as  all  drains  are  now, 
by  statute,  under  .the  care  and  jurisdiction  of  the  county 
drain  commissioner;  and  the  office  of  township  drain  com- 
missioner has  been  abolished20. 


16.  Zabel     v.     Harshman,     68  Mich.  589. 

Mich.  270,  273 ;   Totnlin  v.   New-  20.       Sullivan  v.  Tinsman,  Sup. 

comb.  70  Mich.  358.  Court  file  No.  11953,  not  reported. 

17.  Brady     v.     Hayward.     114  Conley    v.    St.    Gair    Board.    88 
Mich.  327.  Mich.     245.       At     this     time     the 

18.  Robertson     v.     Baxter,    57  county    drain    commissioner    had 
Mich.  127.  129.  concurrent    jurisdiction    with    the 

19.  Hubbell    v.    Robertson,    65  township   drain   commissioner   on 
Mich.  538;    Alger    v.    Slaght,    64  drains  wholly  in  one  township. 


Ji  ~-t(J  THE  LAW   OF  TAXATION  344 

§246.     Jurisdiction.     Public  Health. 

Drain  laws  which  take  from  the  citizen  his  private  prop- 
erty against  his  will,  can  be  upheld  solely  upon  the  ground 
that  such  drains  are  necessary  for  the  good  of  the  public 
health.  They  proceed  upon  the  basis  that  low,  wet  and 
marshy  lands  generate  malaria,  causing  sickness  and  danger 
to  the  health  and  life  of  the  people;  that  when  they  are  of 
such  character  as  to  injure  the  health  of  the  community, 
they  become  and  are  public  nuisances,  which  ought  to  be 
abated,  and  the  legislature  has  the  right  under  the  police 
power  inherent  in  every  government,  to  protect  the  peoplt 
from  plague  and  pestilence,  and  to  preserve  the  public  health. 
But  drainage  for  the  purpose  of  private  advantage,  such  as 
improving  the  quality  of  the  land,  or  rendering  it  more  pro- 
ductive or  fit  for  cultivation,  cannot  be  justified  under  the 
police  power.  Neither  public  convenience  nor  public  wel- 
fare, independent  of  considerations  of  public  health,  will 
justify  the  legislature  in  the  enactment  of  such  laws.  The 
constitution  has  provided  that  this  necessity,  and  compen- 
sation, shall  be  determined  and  ascertained  either  by  a  jury 
of  twelve,  or  by  special  commissioners,  who,  on  their  oath, 
must  find  that  the  construction  of  any  proposed  drain  is 
necessary  for  the  good  of  the  public  health21.  The  size  or 
extent  of  the  drain  does  not  affect  the  jurisdiction  of  the 
commissioner22 ;  but  his  jurisdiction  does  not  extend  to  the 
impairing  of  the  navigability  of  a  navigable  river  or  lake, 

21.     Constitution    of    1850,    Art.  venience  and  welfare  of  the  public 

XVIII,  §2 ;  Beecher's  Constitution  should    not    be    considered.      For 

of  1908,  Art.  XIII,  §2;  Kinnie  v.  other  reasons,  this  law  was  held 

Bare,  68  Mich.  625,  628;  Attorney  unconstitutional.     See   §404,   post. 

General   v.    Me   Clear,   146   Mich.  Rice  v.  Probate  Judge,  141  Mich. 

45.       Act     No.     612     of     Local  693. 

Acts    of    1905,    relating    to    Ionia  22.     Smith  v.  Carlow,  114  Mich. 

Co..  provided  that  no  drain  should  67 ;  Brady  v.  Hayward,  114  Mich, 

be   laid   out  unless  necessary   for  326,  331. 
the   public   health ;    that   the   con- 


:;i:>  JURISDICTION,  ETC.  §§247,248 

as  this  is  forbidden  by  statute23.  The  drain  commissioner 
has  no  authority  except  that  conferred  by  the  petition  upon 
which  he  acts.  He  therefore  cannot  enter,  nor  authorize  the 
entering,  of  private  premises  to  clean  out  an  old  drain  ex- 
cept in  pursuance  of  a  petition  filed  with  him34. 

§247.     Board  of  Health.     Jurisdiction. 

The  board  of  health  has  no  right  to  fill  up  a  drain  or  water- 
course of  twenty  years  standing  on  the  ground  that  it  is  a 
menace  to  the  public  health2*. 

§248.     Action  on  One  Petition. 

A  watercourse,  composed  of  an  original  drain  and  its 
extension,  laid  out  and  established  separately  but  forming 
one  continuous  drain,  may  be  deepened  and  widened  in  one 
proceeding,  upon  one  petition26.  A  drain  may  be  deepened 
and  widened  across  another  drain27.  A  new  drain  may  be 
established  over  the  line  of  an  old  drain ;  and  one  who  is  not 
taxed  or  affected  injuriously  cannot  complain28.  A  com- 
bination of  deepening,  widening,  cleaning  out  and  straighten- 
ing may  be  carried  on  under  one  petition  under  the  law  of 
1895;  and  it  is  held  immaterial  that  the  drain  proposed  to 
be  acted  upon  was  composed  of  several  drains  established 
by  the  state.  Though  these  state  drains  were  turned  over 
to  the  township,  the  county  drain  commissioner  had  con- 
current jurisdiction29.  Under  the  original  act  of  1885,  a 
drain  could  not  be  deepened  and  widened  and  also  extended 

23.  Cole  v.   Dooley,  137  Mich.      man,  133  Mich.  50b. 

419.   C.  L.  54339.  28.     Flynn    Twp.    v.    Woolman, 

24.  Freed  v.  Stuart,  147  Mich.      133  Mich.  508. 

31.  29.     Brady     v.     Hayward.     114 

25.  Chase    v.     Middleton,    123  Mich.  328,  335;  3  H.  S.  8l740h9; 
Mich.  847.  Patterson  v.  Mead.  148  Mich.  659, 

26.  Tinsman  v.  Probate  Judge.  holding  that  three  drains,  forming 
82  Mich.  562.  in  fact  one  continuous  drain,  may 

27.  Berry     v.     Tinsman,     108  be  acted  upon  in  one  petition. 
Mich.  672;   Flynn  Twp.  v.  Wool- 


;?  249  THE  LAW  OF  TAXATION  346 

under  one  petition30.  In  a  petition  to  lay  out  and  establish 
a  drain,  it  is  immaterial  by  virtue  of  the  statute,  that  poc- 
tions  of  an  existing  watercourse  are  cleaned  out,  deepened, 
widened,  straightened,  or  extended,  without  specifically  men- 
tioning the  same  in  the  petition31.  A  petition  to  locate  and 
establish  a  drain  will  support  the  action  of  the  commissioner 
in  varying  the  line  of  drain  prayed  for  in  the  petition,  and 
including  in  the  established  drain  a  portion  of  an  old  drain32. 

§249.     Petition.     Description. 

It  was  not  contemplated  under  the  act  of  1885  that  the 
petition  should  contain  an  accurate  description  of  the 
termini,  and  route  of  the  proposed  drain.  It  could  not  be 
well  done  without  the  petitioners  first  went  to  the  expense 
of  a  survey  in  order  to  determine  the  feasability  of  the 
work.  This  the  law  does  not  require.  What  it  contem- 
plates is  that  the  termini  and  route  shall  be  approximately 
described  for  the  information  of  the  drain  commissioner; 
and  it  is  left  for  him  to  ascertain  and  determine  the  practical 
route  and  termini33.  A  mistake  that  is  clerical  upon  its  face 
will  not  avoid  the  petition34.  The  size  of  the  drain  does  not 
affect  the  jurisdiction  of  the  drain  commissioner35.  A  peti- 
tion on  a  drain  50  rods  long,  giving  its  commencement  and 
general  direction,  but  not  its  terminus  or  proposed  size,  is 

30.  Hinds    v.    Probate    Judge,  drain  should  be  described  in  the 
McGraths    Mandamus    cases,    N.  petition  to  deepen  and  widen,  or 
613.  clean  out.     Act  203  of  the  Public 

31.  3   H.   S.   §1740h7;   Act  203  Acts   of    1893,    Chap.   8,    §1,   pro- 
of   1893,    Chap.   8,    §1.    Hauser   v.  vided  that  it  should  not  be  neces- 
Burbank,  117  Mich.  463,  467.  sary    to    designate     a    drain    by 

32.  Sturm  v.  Kelly,  120  Mich.  name,     but     that     it     might     be 
685,  688.  described    by    giving    its    general 

33.  C.     L.     §4319,     Kinnie     v.  course  and  direction. 

Bare,    68   Mich.   625,   627;   Kinnie  34.     Kinnie   v.    Bare,    68    Mich, 

v.  Bare,  80  Mich.  345,  347.     Until  625,  634. 

1893,    the    statute    made    no    pro-  35.     Smith  "v.  Carlow,  114  Mich, 

vision    as   to   how   an    established  67. 


347  JURISDICTION,  ETC.  §  250 

held  sufficient  under  the  law 'of  187536.  When  the  petition 
only  gives  the  line  of  a  drain,  and  none  of  the  subsequent 
papers  describe  the  land  proposed  to  be  taken,  it  is  too  in- 
definite to  work  upon37.  A  petition  which  leaves  the  com- 
missioner to  determine  the  course  of  part  of  a  drain,  and 
does  not  give  a  terminus,  is  too  indefinite  to  confer  jurisdic- 
tion38. Under  the  statute,  however,  the  commissioner  has 
a  discretion  in  locating  the  terminus  of  a  drain39.  When 
the  termini  and  route  are  approximately  described,  though 
in  general  terms,  it  will  be  sufficient;  the  commissioner  is 
left  to  determine  the  practical  route  and  termini*0.  It  is 
competent  for  the  legislature  to  provide  that  the  drain  shall 
be  confined  to  the  precise  commencement,  route  and  terminus, 
mentioned  in  the  petition41. 

§250.     Petition.    Signers. 

Act  227  of  the  Public  Acts  of  1885  did  not  require  that  the 
petitioners  should  be  residents  of  the  townships  where  the 
drain  was  situated;  it  was  sufficient  if  they  were  freeholders 
thereof42.  Under  Act  233  of  Public  Acts  of  1899,  the  peti- 

36.  Gark  v.  Drain  Com'rs.,  50       since  1885. 

Mich.  618,  620.  To  lay  out  and  establish  a  drain: 

37.  Bennett  v.  Olney,  56  Mich.  1885,   Act   227,   Chap    III.    §1.   re- 
634.  636.  quired     five     freeholders    of    the 

38.  Null    v.    Zierle,    52    Mich.  townships  traversed  by  the  drain. 
540;     Frost     v.     Leatherman,     55  1893.     Act  203,  Chap.  Ill,  §1,  re- 
Mich.  33,  38.  quired    five    freeholders,    one    or 

39.  Gillison    v.    Cressman,    100  more    of    whom    should    be    the 
Mich.  591,  597.  owner  of  land  liable  to  an  assess- 

40.  Hauser     v.     Burbank,     117  ment  for  benefits.    1895.    Act  217. 
Mich.  463,  467.  Chap.    Til,    §1,    required    ten    or 

41.  Rice  v.  Probate  Judge,  141  more   freeholders,  30%  of  whom 
Mich.  693.  should    be    the    owners    of    lands 

42.  See     8318,     Post ;     C.     L.  liable  to  an  assessment  for  bene- 
84319:   Kinnie  v.   Bare,  68   Mich.  fits.      1897.      Act   254,    Chap.    III. 
625;    Gillett    v.    McLaughlin,    69  8l,    required    ten    or    more    free- 
Mich.  547.  holders,  three  or  more  of  whom 

There  has  been  several  changes  should    be    the    owners    of    lands 

in  reference  to  the  requisite  num-  liable  to  an  assessment  for  bene- 

ber    of    signers    on    the    various  fits.      But    in    cases    where   there 

petitions,   and   their  qualifications.  were  only  three  interested  owners 


250 


THE  LAW  OF  TAXATION 


348 


tion  to  deepen  and  widen  a  drain  composed  of  the  original 
drain  and  its  extension,  laid  out  separately,  must  be  signed 
by  at  least  one  freeholder  who  was  assessed  on  the  con- 
struction of  each  portion  of  the  drain.  Such  a  drain  upon 
a  proper  petition,  may  be  deepened  and  widened  as  one 
drain43.  Where  a  drain  traverses  more  than  one  township, 
the  petition  need  not  be  signed  by  five  freeholders  of  each 
township44.  Where  jurisdiction  is  once  acquired,  it  cannot 
be  impaired  or  taken  away  by  the  attempted  withdrawals  of 


of  lands  involved,  one  freeholder 
liable  to  an  assessment,  only,  was 
required.  It  will  be  noticed  that 
there  is  a  hiatus.  Where  only 
four  interested  owners  are  in- 
volved, there  is  no  provision 
whereby  they  may  obtain  a  drain. 
1899.  Act  272,  Chap.  Ill,  §1,  re- 
quires ten  or  more  freeholders, 
five  or  more  of  whom  shall  be 
the  owners  of  lands  liable  to  an 
assessment  for  benefits.  In  cases 
where  three  parties  only  are  in- 
terested in  the  proposed  drain, 
the  provision  is  similar  to  the 
law  of  1897.  Act  272  of  Public 
Acts  of  1907  required  the  sign- 
ature of  ten  freeholders,  four  of 
whom  would  be  liable  to  an 
assessment  and  also  required  the 
signatures  of  not  less  than  one 
half  of  the  owners  of  lands 
traversed  by  the  drains ;  where  five 
or  less  persons  would  be  benefited 
the  signing  of  one  half  so  bene- 
fited would  be  sufficient. 

Act  193  of  Public  Acts  of  1909, 
requires  the  petition  to  be  signed 
by  not  less  than  one-third  of  the 
owners  of  lands  traversed  by  the 
proposed  drain. 

To  clean  out,  deepen,  widen, 
extend  or  straighten  a  drain. 
1881.  The  law  of  1881,  1  H.  S. 
§1696,  required  five  signers  on 
a  petition  for  drain  proceedings, 
who  should  be  resident  free- 


holders of  the  townships  affected. 
It  is  silent  as  to  the  interest  of 
the  petitioners.  1885.  Act  227, 
Chap.  VIII,  §1,  permitted  any 
owner  of  land  which  had  been 
assessed  on  the  construction  of 
the  drain,  to  petition  therefor. 
This  was  in  force  until  1889. 
1889.  Act  ,  Chap.  VIII,  §1, 
required  five  signers,  one  or  more 
of  whom  were  the  owners  of 
land  which  had  been  assessed  on 
the  construction  of  the  drain. 
This  was  in  force  until 
1893.  Act  203,  Chap.  VIII,  §1, 
required  five  signers,  one  or  more 
of  whom  should  be  the  owners  of 
lands  which  would  be  liable  to  an 
assessment  for  benefits.  See  note 
to  §242,  supra.  Sec.  1,  of  Chap. 
VIII  of  Act  272  of  Public  Acts 
of  1907,  requires  petition  to  be 
signed  by  one  third  of  the  owners 
of  lands  traversed  by  the  drain. 
Act  193  of  Laws  of  1909  re- 
quires a  petition  to  clean  out  to 
be  signed  by  one-fourth  of  the 
owners  of  lands  traversed  by  the 
drain.  There  is  no  provision  as 
to  deepening  and  widening. 

43.  Tinsman  v.  Probate  Judge, 
82  Mich.  562. 

44.  3   H.    S.   §1740b5    (Law  of 
1895);  .Brady    v.    Hayward,    114 
Mich.  326,  331 ;  Hall  v.  Slaybaugh, 
69  Mich.  484. 


JURISDICTION,  ETC.  §250 


the  petitioners45.  Act  203  of  Public  Acts  of  1893  only  re 
quires  that  the  petitioners  shall  be  freeholders  of  the  town- 
ships affected.  They  need  not  be  resident  freeholders46; 
neither  does  the  petition  require  ten  signers  from  each  town- 
ship affected  or  traversed47.  A  prior  petition  cannot  be 
used  to  support  a  subsequent  petition  for  a  public  improve- 
ment48. A  signer  of  the  petition  may  not  withdraw  his 
name  after  the  petition  has  been  filed  and  proceedings  com- 
menced49. A  woman  may  be  a  freeholder  and  qualified  to 
sign  petition50.  Where  a  husband  and  wife  jointly  own 
land  the  signature  of  one  is  a  nullity  ;  where  the  statute  re- 
quires signers  to  be  owners  both  must  join51.  The  vendee 
of  a  land  contract,  in  possession,  is  a  freeholder.  At 
common  law  and  by  statute,  estates  of  inheritance  are 
freehold  estates.  The  estate  of  a  vendee  in  a  land  con- 
tract, is  an  estate  of  inheritance52.  Where  the  statute 
requires  that  the  signers  be  freeholders  each  tenant  by 
entirety  is  a  freeholder.  Other  persons  cannot  claim  that 
some  names  were  obtained  by  fraud.  It  is  not  necessary  that 
a  deed  be  recorded  to  confer  a  right  to  sign  a  petition".  A 
husband  and  wife  holding  as  such  are  each  competent  to  sign 
a  petition.  One  holding  an  estate  for  life  is  a  freeholder; 
so  is  one  who,  in  equity,  has  a  right  to  the  premises  in  fee84. 
A  requirement  that  a  petition  be  signed  by  "not  less  than  one- 
third  of  the  freeholders  of  the  lands  to  be  drained  thereby 


45.  Siebert   v.    Woeval,   «1   N.  50.     Patterson     v.     Mead,     148 
W.  Rep.  (la.)  197.  Mich.  659. 

46.  Angell    v.    Courtright,    111  51.     Patterson     v.     Mead,     148 
Mich.  223.  Mich.  659. 

47.  Auditor  General  v.  Fisher,  52.    Auditor  General  v.  Fisher, 
84  Mich.  128,  131.  84  Mich.  128. 

48  Patterson  v.  Mead,  148  53.  Starkweather  v.  Chatfield, 

Mich.  659.  149  Mich.  443. 

49.  Rice  v.  Probate  Judge,  141  54.  Hinkley  v.  Bishop,  152 

Mich.  693.  Mich.  256. 


§  251  THE  LAW   OF  TAXATION  350 

and  to  be  assessed  therefor"  is  void  for  uncertainty,  and 
impossible  of  execution.  There  is  no  means  of  determining, 
until  the  final  review  of  the  assessment,  in  such  a  case, 
whether  or  not  the  commissioner  had  jurisdiction.  Where, 
however,  the  requirement  is  that  a  certain  number  of  the 
petitioners  be  "liable"  to  such  an  assessment,  the  provision 
is  good,  since  the  word  "liable"  contains  the  idea  of  a  con- 
tingency. Giving  the  word  "liable"  in  the  general  drain  law 
the  contingent  meaning  authorized  by  the  authorities,  those 
liable  to  an  assessment  for  benefits  should  mean  those  who 
might  properly  be  assessed  for  benefits,  the  requirement  is 
not  void  for  uncertainty55. 

§251.     Petition.     Recitals. 

Statutory  Provision. 

§1  of  Chap.  Ill  of  the  Drain  Law,  as  amended  by  Act 

193  of  Public  Acts  of  1909,  provides : 

"Before  the  commissioner  takes  any  action  towards 
locating,  esablishing  or  extending  any  drain,  there 
shall  be  filed  with  him  an  application  signed  by  not 
less  than  one-third  of  the  freeholders  whose  lands  are 
traversed  by  said  drain.  The  eligibility  of  the  signers 
to  such  application  shall  be  determined  by  their  in- 
terest of  record,  either  in  the  office  of  the  register  of 
deeds,  in  the  probate  court  or  in  the  circuit  court  or 
circuit  court  in  chancery  of  the  county  in  which  such 
lands  are  situated,  at  the  time  such  petition  is  filed. 
It  shall  only  be  necessary  that  such  application  be 
signed  by  one-third  of  the  freeholders  whose  lands 
are  traversed  by  said  drain." 

55.     Bakker     v.     Fellows,     153      Mich.  428. 


:;:.  l  JURISDICTION,  ETC.  §251 

Form  of  Petition  for  Drain. 

Stuti-  of  Michigan.      } 
County  of  >  ss. 

Township  of  ) 

To  the  County  Drain  Commissioner  of  said  County. 

Your  petitioners  respectfully  show  that  they  are  free- 
holders of  the  township  of in  said  county, 

iu  which   the  drain  herein   applied  for  to  be   located   and 
established  and  the  lands  to  be  drained  thereby  are  situate. 

That  tlie  construction  of  said  drain  is  necessary  for  the 
good  of  the  public  health,  and  that  the  signers  hereto  con- 
stitute one-third  of  all  of  the  owners  of  lands  traversed  by 
the  proposed  drain,  and  that  each  of  such  signers  is  the 
oiwer  of  lands  which  will  be  liable  to  an  assessment  for 
benefits  on  the  construction  of  the  proposed  drain. 

Your  petitioners  therefor  request  you  to  lay  out  and 
establish  a  drain  described  substantially  as  follows,  to-wit: 

Commencing  at  a  point  in  the  toivnship  of , 

(describe  commencement  and  terminus  accurately,  with  a 
general  description  between  these  points).  Drain  to  be 
made  ....  feet  deep  at  the  upper  end;  bottom  to  be  .... 
feet  wide,  with  slope  of  each  bank  to  be  .  .  . .  feet  horizontal 
to  one  foot  perpendicular. 
Dated,  

The  petition  is  that  which  puts  the  officer  in  motion.  It 
is  the  basis  of  his  authority  to  enter  upon  the  course  of  the 
proceedings  to  establish  the  drain,  and  must  be  in  writing*9. 
In  a  petition  to  deepen  and  widen  an  existing  drain,  under 
the  law  of  1889,  it  must  appear  that  the  requisite  number 
of  signers  were  assessed  on  the  construction  of  the  original 
drain.  If  the  original  drain  was  laid  out  in  two  different 

56.     Kroop  v.  Fortnan.  31  Mich.       144. 


§§  252.  253  THE  LAW    OF  TAXATION  352 

parts  or  sections,  though  forming  one  continuous  drain,  it 
must  appear  that  at  least  one  signer  was  assessed  on  each 
part;  that  is,  each  part  must  have  representation  upon  the 
petition57.  Where  the  statute  required  that  a  majority  of 
the  owners  of  lands  traversed  by  the  proposed  drain  should 
sign  a  petition  therefor,  such  fact  should  affirmatively  ap- 
pear58. Where  the  statute  required  that  the  petitioners  be 
resident  freeholders  of  the  township  where  the  drain  was  to 
be  situated,  such  fact  must  affirmatively  appear59,  upon  the 
face  of  the  petition60.  The  petition  need  not  state  that  it 
is  necessary  for  the  good  of  the  public  health  that  the  drain 
be  constructed61.  The  commissioner  may  use  sewer  pipe, 
without  a  prayer  therefor  in  the  petition62. 

§252.     Petition.     Surplusage. 

Although  the  petition  may  recite  that  a  certain  township 
and  county  will  be  benefited  by  the  proposed  proceedings, 
along  with  other  townships  in  a  county  where  the  drain 
is  located,  such  recital  together  with  the  fact  that  the  county 
drain  commissioner  of  the  first  county  was  named  in  the 
petition  is  harmless  surplusage63. 

§253.     Petition  to  Deepen  and  Widen  or  Clean  Out. 

Under  the  laws  of  1871,  a  petition  to  clean  out  a  drain 

57.  Tinsman  v.  Probate  Judge,  for    a    street    improvement,    the 
82    Mich.    562;    but    see    Auditor  court  refused  to  allow  the  use  of 
General   v.   Bolt,   147   Mich.   283 ;  the  first  petition  to  support  pro- 
where    it    is    intimated    that    the  ceedings  had  on  the  last  one. 
number  liable  to  assessment  need  59.    Frost    v.    Leatherman,    55 
not  appear.  Mich.  33,  38;  Whiteford  Twp.  v. 

58.  In  Harbaugh  v.  Martin,  30  Probate  Judge,  53  Mich.  130,  133. 
Mich.  274,   there  was  nothing  in  60.    Whiteford  Twp.  v.  Probate 
the  record  of  the  drain  disclosing  Judge,  53  Mich.  130,  133. 

this  fact.     The  court  declined  to  61.    Kinnie   v.    Bare,   80    Mich. 

determine  whether  or  not  a  sub-  345. 

sequent       supplemental       petition  62.    Kenyon  v.  Ionia  Board,  138 

might  not  have  been  filed  show-  Mich.  544. 

ing  this  fact.    In  Auditor  General  63.    Carlow  v.  Smith,  114  Mich. 

v.     Fisher,     84     Mich.     128,     131,  67,  70. 

where    there    were    two    petitions 


JURISDICTION,  ETC. 

would  not  support  proceedings  to  deepen  and  widen  it*4. 
Under  such  a  petition,  a  drain  may  only  be  cleaned  out ;  and 
the  notice  of  sale  and  apportionment  need  not  be  person- 
ally served  upon  the  tax  payers85.  A  petition  to  extend  a 
drain  would  seem  to  require  the  same  signers  as  one  to  lay 
out88. 

Statutory  Provision. 

§1  of  Chap.  VIII  of  the  Drain  Law,  as  amended  by  Act 

193  of  Public  Acts  of  1909,  provides: 

"Whenever  a  drain  or  any  portion  thereof  needs 
cleaning  out,  one-fourth  of  the  freeholders  whose 
lands  are  traversed  by  said  drain  liable  to  an  assess- 
ment for  benefits  on  account  of  the  proposed  improve- 
ment, may  make  application  in  writing  to  the  county 
drain  commissioner  of  the  county  in  which  such  drain 
is  located  and  the  lands  to  be  affected  thereby  are 
situated,  setting  forth  the  necessity  of  such  proposed 
work,  and  the  county  drain  commissioner  shall,  as 
soon  as  practicable  thereafter,  notify  the  township 
clerk  or  clerks  of  the  township  or  townships  through 
which  the  said  drain  passes,  of  the  filing  of  such 
petition,  giving  a  copy  or  copies  thereof."  It  further 
provides  that  the  township  boards,  determine  whether 
or  not  the  drain  be  cleaned  out.  The  township  boards 
make  the  order  that  the  drain  be  cleaned  out,  and  the 
drain  commissioner  assesses  the  benefits. 

Form  of  Petition  for  Cleaning  Out  Drain. 
State  of  Michigan.    } 
County  of  £ss. 

Toumship  of 

Your  petitioners  respectfully  show  that  they  arc  frcc- 

64.  See  §318,  supra,  for  a  his-      Mich.  529,  531. 

tory  of  legislation.     Harbaugh  v.          66.     Patterson     v.     Mead,     148 
Martin,  30  Mich.  274.  Mich.  659. 

65.  Lanning     v.     Palmer,     117 

(28) 


§§  254,  255  THE   LAW  OF  TAXATION  354 

holders  of  the  townships  of in  said  county, 

in  which  said  township  is  situate,  the 

drain,  and  the  lands  affected  or  benefitted  thereby. 

That  the  cleaning  out  of  said  drain  is  necessary  for  tlie 
good  of  the  public  health  and  that  the  signers  hereto  con- 
stitute one- fourth  of  all  of  the  owners  of  lands  traversed 
by  said  drain  and  that  each  of  such  signers  is  the  owner  of 
land  which  will  be  liable  to  an  assessment  for  benefits  on 
the  cleaning  out  of  said  drain. 

Wherefore  your  petitioners  request  you,  to  clean  out  said 
drain  to  the  dimensions  heretofore  established,  in  pursuance 
of  the  statute  in  such  case  made,  provided. 
Dated,   

(There  is  no  provision,  under  the  Drain  Law  of  1909, 
for  deepening  and  widening  a  drain.  It  is  suggested,  under 
the  authorities  cited  in  §248,  that  a  petition  to  lay  out  and 
establish  a  water  course  might  lie  in  such  a  case.) 

§254.     Change  of  Drain. 

Where  a  drain  is  changed  by  the  owner  of  premises  on 
his  own  lands,  he  cannot  oust  proceedings  to  deepen  and 
widen  such  drain  on  the  ground  that  such  a  change  had  not 
been  established67.  Such  a  drain  will  still  be  a  legal  drain68. 

§255.     Intersection  of  Drains. 

A  commissioner  may  dig  or  construct  one  drain  across 
another  existing  drain  unless  the  drain  so  intersected  is 
used  for  other  purposes  than  drainage.  It  is  no  injury  to 


67.     Tinsman  v.  Probate  Judge,  68.     Freeman     v.      Weeks,      45 

McGraths    Mandamus    cases    No.      Mich.  335. 
611. 


355  JURISDICTION,  ETC.  §  256 

divert  the  flow  of  drainage  water,  where  the  only  object  of 
the  drain  is  to  free  the  land  of  the  water71. 

H  256.     Survey. 

It  should  show  where  the  center  line  of  the  drain  crosses 
the  line  of  private  owners72.  The  court  raises  a  quaere 
whether  an  unexplained  delay  of  a  year  in  making  the  sur- 
vey would  avoid  the  proceedings,  but  does  not  decide  this 
point.  From  other  holdings  of  the  court,  it  would  seem  to 
be  immaterial73.  The  survey,  under  Act  227  of  Public  Acts 
of  1885,  need  not  be  copied  into  the  application  to  the  pro- 
bate court.  It  is  sufficient  to  refer  therein  to  the  first  order, 
where  they  are  set  out74.  The  survey  should  show  the 
length  of  drain  on  each  owner;  but  if  the  land  is  sold  and 
subdivided  after  the  survey  is  made,  such  fact  will  not  re- 
quire a  new  survey75.  The  original  minutes  of  survey  need 
not  be  filed  with  the  probate  court.  They  may  remain  with 
the  drain  commissioner76.  The  ninety  days  time  for  making 
the  first  order  begins  to  run  from  the  time  of  the  delivery 
of  the  minutes  of  survey  to  the  commissioner77. 

Statutory  Provision. 

C.  L.  §4320  (§13  of  Drain  Law),  provides:  "The 
record  or  minutes  of  the  survey  shall  show  the  line 
and  route  of  the  drain,  the  points  where  the  line  of 
the  drain  crosses  the  boundary  lines  of  each  owners 
land  and  the  length  thereof  upon  his  land,  and  the 

71.  Berry     v.     Tinsman,     108          74.     Kinnic   v.   Bare,   80   Mich. 
Mich.  672;  Flynn  Twp.  v.  Wool-      345. 

man.  133  Mich.  508.  75.     Hackett     v.     Brown.     129 

72.  C.    L.     54320:     Kinnie    v.      Mich.  141,  144. 

Bare.  68  Mich.  625.  76.     Hackett     v.     Brown,     128 

73.  See  Delay  in   Proceedings.      Mich.  141,  144. 

§364.     post.       Wright     v.     Drain          77.     Flynn    Twp.    v.    Woolman, 
Com'r,  44  Mich.  557.  133  Mich.  808. 


§  257  TUB  LAW  OF  TAXATION    •  356 

width  of  surface  excavation  that  will  be  required  in 
,  its  construction,  and  shall  also  show,  by  words,  or 
letters  and  figures,  the  width  of  ground  that  will  be 
required  for  the  deposition  of  earth,  and  every  re- 
lease of  right  of  way  shall  be  deemed  to  include  the 
extreme  width  thus  shown." 

§257.     First  Order. 

The  first  order  of  determination  is  the  basis  upon  which 
the  special  commissioners  or  jury  act.  It  is  the  drain  as 
therein  described  which  they  find  necessary,  or  unnecessary 
for  the  good  of  the  public  health78.  It  is  competent  for  the 
legislature  to  provide  that  the  drain  commissioner  may  de- 
termine the  necessity  of  the  drain  without  affording  a  pros- 
pective taxpayer  thereon  an  opportunity  to  be  heard.  The 
only  persons  who  can  question  this  determination,  or  upon 
whom  it  is  not  final,  are  those  whose  property  is  proposed 
to  be  taken.  Such  persons  have  the  constitutional  right  to 
have  the  question  of  necessity  determined  by  special  com- 
missioners or  a  jury  in  the  manner  provided  by  statute79. 
This  order  must  be  signed  by  the  commissioner80.  The 
making  of  this  order  is  imperative,  as  in  it  the  commissioner 
determines  the  specifications  of  the  drain.  It  is  not  required 
that  it  may  be  retained  as  something  for  the  private  satis- 
faction of  the  commissioner.  The  intention  is  to  afford 
precise  data  to  be  acted  on  by  the  jury  or  commissioners, 
and  the  regulation  contemplates  that  the  scheme  thus 
marked  out  shall  be  viewed  as  the  subject  for  their  judg- 
ment81. The  order  is  fatally  defective  if  it  fails  to  describe 

78.  C.     L.     §4320;     Kinnie     v.  Mich.   257,   259;   Loree  v.    Smith, 
Bare,  68  Mich.  625.  100  Mich.  252,  254. 

79.  Roberts  v.  Smith  115  Mich.  81.     Milton  v.  Drain  Com'r..  40 
5,  7.  Mich.  229,  231 ;  Kroop  v.  Forman, 

80.  Pieotter     v.     Whaley,      80  31  Mich.  144. 


JURISDICTION,  ETC. 

the  route,  terminus,  length  of  drain,  depth  and  width82. 
Where  this  order  contains  the  line  of  a  drain,  with  excava- 
tions and  widths  specified,  this  line  will  be  presumed  to  be 
the  center  line  of  the  drain83.  The  drain  can  only  be  con- 
structed for  the  benefit  of  the  public  health,  and  not  for 
the  benefit  of  the  lands  drained84.  The  law  fixes  no  limit 
to  the  width  or  depth  or  size  of  a  drain,  nor  to  what  extent 
a  stream  may  be  deepened  and  widened  so  as  to  drain  the 
adjoining  land.  This  determination  is  left  entirely  to  the 
commissioner;  the  courts  cannot  substitute  their  judgment 
for  his85.  The  ninety  days  time  within  which  this  order 
must  be  made  begins  to  run  from  the  time  the  minutes  of 
survey  are  delivered  to  the  commissioner.  It  need  not 
affirmatively  appear  when  they  were  delivered  as  the  tax 
would  not  be  void  if  this  requirement  were  not  complied 
with.  This  provision  is  not,  therefore,  jurisdictional88. 
\Yhere  all  parties  release  the  right  of  way  for  a  drain,  the 
commissioner's  finding  in  his  order  that  the  drain  is  a  public 
necessity,  is  conclusive87.  The  commissioner  may  make 
slight  changes  in  the  dimensions  of  the  drain,  if  not  one  is 
injured  thereby,  altering  his  first  order  to  correspond  with 
the  change88. 

Statutory  Provision. 

C.  L.  §4320,  supra,  after  receiving  a  survey  of  the 
line  of  the  drain  to  be  made  by  a  competent  surveyor, 
provides:  "If  upon  such  survey  he  shall  find  such  drain 
to  be  practicable,  he  shall  within  ninety  days  make  his 

82.  Nugent    v.    Erb,   90    Mich.      67,  71. 

278.  86.     C.    L.    54320;    Flynn    Twp. 

83.  Anketell    v.    Hay  ward,    119  v.  Woolman,  133  Mich.  508. 
Mich.  525,  527.  87.    Roberts  v.  Board  of  Super- 

84.  Butler   v.    Saginaw    Board,  visors,  115  Mich.  5. 

2C>   Mich.   22,   29.  88.    Horn     v.     Livingston     Co. 

85.  Smith  v.  Carlow,  114  Mich.      Board,  135  Mich.  553. 


§  257  THE  LAW   OF  TAXATION  358 

first  order  of  determination  in  writing  in  accordance 
therewith,  therein  particularly  naming  such  drain  by 
which  it  shall  thereafter  be  known  and  shall  establish 
the  commencement,  route  and  terminus  of  said  drain, 
and  the  width,  length  and  depth  thereof,  and  shall  set 
survey  or  grade  stakes  not  more  than  eight  rods 
apart." 

Form  of  First  Order. 

State  of  Michigan.     } 
County  of  >ss. 

Township  of 

First  order  of  determination  on Drain. 

Whereas  an  application  in  writing,  bearing  date  the 

day  of ,  was  made  and  filed  unth  me, 

The  County  Drain  Commissioner 

of county,  Michigan,  praying  for  the 

locating  and  establishing  of  a  certain  drain  therein  de- 
scribed, which  application  was  signed  by  one-third  of  all 
of  the  freeholders  owning  lands  traversed  by  the  proposed 
drains 

And,  whereas,  as  soon  as  practicable  thereafter,  as  such 
commissioner,  proceeded  to  personally  examine  the  route 
of  the  proposed  drain  and  was  of  the  opinion  that  its  con- 
struction was  practicable  and  necessary  for  the  good  of 
the  public  health;  and  as  a  means  of  determining  the  prac- 
ticability thereof,  I  did  cause  a  survey  and  measurement 

of  the  line  thereof  to  be  made  by  , 

a  competent  surveyor;  and  upon  such  survey  I  found  such 
proposed  drain  to  be  practicable,  which  survey  was  com- 
pleted on  the day  of 

Now  therefore,  I,  as  such  County  Drain  Commissioner, 
do  hereby  determine  that  the  laying  out  and  establishing  of 


JURISDICTION,  ETC.  §  258 

siuh  drain  is  necessary  for  the  good  of  the  public  health; 
and  that  it  is  necessary  to  take  private  property  for  the  use 
and  benefit  of  the  public  for  the  purpose  of  said  drain,  and 
I  further  determine  from  such  survey  and  examination  that 
tlie  construction  of  such  drain  is  practicable,  and  I  do  here- 
by order  that  said  application  be  granted,  and  that  said 
drain  be  laid  out  and  established  in  accordance  with  the 
minutes  of  survey  thereof,  a  copy  of  which  are  hereto  at- 
tached and  marked  Ex.  A  and  made  a  part  of  this  order. 
And  I  order  and  determine  that  the  commencement,  term- 
inus routs,  grade,  cut,  excavations,  slope  of  banks,  ami 
width  for  depositing  excavations,  shall,  in  all  respects  be 
in  accordance  ivith  the  said  minutes  of  sun'ey.  I  further 
determine  that  the  outlet  of  said  drain  is  of  sufficient  capa- 
city to  carry  the  water  therefrom. 

I  further  order  and  determine  that  said  drain  shall  be 
known  and  recorded  as  the Drain. 

Given  under  my  hand  this day  of 


County  Drain  Commissioner. 

(Attach  a  copy  of  the  minutes  of  survey,  marking  them 
Ex.  A.) 

§258.     Necessity  of  Drain. 

The  determination  of  the  necessity  of  a  drain  does  not 
necessarily  have  to  be  determined  by  commissioners  or  a 
jury  unless  it  involves  more  than  a  cleaning  out.  While 
the  statute  provides  that  the  rules  which  applied  to  making 
drains  should  apply  to  some  cases  of  improving  them,  it 
is  only  where  there  is  a  proceeding  "affecting  the  rights  of 
persons  or  property."  It  is  evident  that  when  a  drain  has 
once  been  legally  made,  there  is  at  least  a  presumption  that. 


§  258  THE  LAW   OF  TAXATION  360 

if  necessary  at  all,  it  should  be  kept  in  reasonable  order; 
and  that  usually  the  points  in  which  the  contributing  parties 
are  interested  are  in  the  amount  of  entire  cost,  and  the  ratio 
of  assessment  among  the  contributors89.  The  power  to 
determine  the  necessity  of  a  drain  is  not  by  law  imposed 
upon  the  courts;  it  is  placed  exclusively  in  the  hands  of 
those  tribunals  established  by  law  for  the  sole  purpose  of 
determining  the  question  of  necessity  and  of  eminent  domain. 
Neither  the  circuit  court  nor  the  supreme  court  is  at  liberty 
to  substitute  its  judgment  upon  this  point  for  the  judgment 
of  the  special  commissioners  who  have  been  appointed  to 
determine  that  question90.  The  necessity  contemplated  is 
a  public  necessity.  The  public  cannot  take  land  or  assess 
a  tax  for  the  construction  of  a  drain  merely  for  its  benefit 
to  private  lands;  nor  can  the  owner  of  lands  benefited  be 
taxed  therefor91.  The  necessity  does  not  mean  what  you 
cannot  absolutely  get  along  without, — that  which  is  in- 
despensable  or  imperative,  but  only  that  which  is  convenient 
and  useful92.  Independent  of  the  consideration  of  necessity 
on  account  of  the  public  health,  there  is  no  authority  in  the 
legislature  to  enact  laws  for  the  condemnation  of  private 
property,  and  to  levy  taxes  for  the  construction  of  drains; 
such  legislative  action  is  a  provision  for  the  exercise  of 
those  police  powers  inherent  in  every  government  for  the 
protection  of  the  people.  As  the  basis  of  every  valid  pro- 
ceeding under  these  laws  the  drain  commissioner  must  find 
that  the  drain  is  necessary  to  the  public  health93. 

89.  See      First      Order,      §325,          91.     Butler    v.    Saginaw    Board, 
supra ;    Barker    v.    Vernon    Twp.,      26  Mich.  22. 

63  Mich.  516,  518.  92.     Paul   v.    Detroit,   32    Mich. 

90.  See  Jurisdiction  of  Equity      110. 

Courts.  §  373;  Swan  Creek  Twp.,  93.  Alexander  v.  McQear,  146 
v.  Brown,  130  Mich.  380,  385.  Mich.  45. 


.nil  JURISDICTION,  ETC. 

<259.     Release  of  Right  of  Way. 

The  proceedings  of  the  commissioner  are  ex  parte  through 
the  stage  of  attempting  to  secure  the  right  of  way94.  Where 
a  right  of  way  is  incomplete,  the  court  may  enjoin  the  pro- 
ceedings until  the  commissioner  condemns  the  part  not  re- 
leased95. The  giving  of  a  written  consent  or  license  by  a 
railroad  company  to  cross  its  road  bed  with  the  drain,  to- 
gether with  building  a  culvert  thereover,  is  a  sufficient  re- 
lease90. Releasing  a  right  of  way  on  one  petition  is  not  a 
release  of  right  of  way  upon  proceedings  founded  upon 
another  petition,  though  over  the  same  course97.  \Yhere  a 
person  is  not  injured,  no  release  of  right  of  way  is  neces- 
sary, as  for  conveying  additional  water  into  a  sufficient 
outlet98.  C.  L.  §4334,  insofar  as  it  attempts  to  make  a  rail- 
road company  construct  a  culvert  without  compensation,  u 
unconstitutional,  being  contrary  to  the  principles  laid  down 
in  the  highway  crossing  cases99. 

Form  for  Release  of  Right  of  Way. 
State  of  Michigan.     } 
County  of  >ss. 

Toumship  of 

Release  of  Right  of  Way  in Drain. 

For  and  in  consideration  of  the  sum  of  si.r  cents  to  each 

of  us  severally  in  hand  paid  by  as 

County  Drain  Commissioner  of County. 

94.  Kinnie   v.    Bare,   68    Mich.  99.     Chicago,    etc.,     R.    Co.    v. 
625.  Chappell,  124  Mich.  72. 

95.  Brady    v.     Hayward,     114  In    Pere    Marquette    R.    Co.— 
Mich.  326,  334;   Sturm  v.  Kelley,  L.  N.— (filed  July  15.  1909)   it  is 
120  Mich.  689.  held  that  there  is  a  power  to  con- 

96.  Sturm  v.  Kelley,  120  Mich,  demn    a    right   of   way   across   a 
685,  688.  railroad  track,  but  the  award  must 

97.  Stum  v.  Kelley,  120  Mich.  affirmatively    show    that    the    cost 
685,  689.  of  a  culvert  was  included  in  the 

98.  Sturm  v.  Kelley,  120  Mich.  damages. 
685.  689. 


§  259  THE  LAW   OF  TAXATION  362 

Michigan,  the  receipt  whereof  is  hereby  confessed  and 
acknowledged,  and  also  in  consideration  of  the  benefits  to 
the  public  health  and  to  the  lands  owned  by  us  severally,  to 
be  derived  from  the  construction  of  a  certain  drain  known 
as Drain  more  particularly  de- 
scribed as  set  forth  in  Ex.  A.  hereto  attached  and  made  a 
part  of  this  release,  we  do  severally  release  and  convey  to 

the  said  county  of ,  the  right  of  way  for 

said  drain  over  and  across  all  lands  owned  or  occupied  by 
us,  or  in  which  we  have  any  interest,  in  the  townships  of 

,   , ,  traversed  by  said 

drain,  according  to  said  Ex.  A.  being  the  minutes  of  sur- 
vey of  said  drain.  This  release  shall  include  a  strip  of  land 

lying rods  zvide  on  each  side  of  the  center  line 

of  said  drain,  according  to  the  survey  thereof,  to  deposit 
excavations  and  for  convenience  in  digging. 

The  right  of  way  hereby  conveyed  is  for  the  sole  and 
only  purpose  of  constructing  and  perpetually  maintaining 
said  drain,  the  order  of  determination  upon  which  bears 
date  the  day  of  

In  witness  whereof  we  have  hereunto  set  our  hands  and 

seals  this day  of 

L.  S. 

L.  S. 

In  presence  of 


State  of  Michigan.     } 
County  of  >  ss. 

Township  of 

On  this day  of ,  before  me 

the  undersigned,  the  County  Drain  Commissioner  of  said 
county,  personally  appeared , , 


363                                      JURISDICTION,  ETC.  §  260 

li'ho  severally  acknowledged  the  execution 

of  the  foregoing  instrument  for  the  intents  and  purposes 
therein  specified. 


County  Drain  Commissioner. 

(Attach  a  copy  of  minutes  of  sun'c\,  marking  tliem  Ex. 
A.) 

§260.     Attempt  to  Obtain  Release. 

The  drain  laws  of  1871,  as  well  as  the  subsequent  laws, 
required  the  commissioner  to  attempt  to  obtain  a  release  of 
right  of  way  for  the  drain  before  making  his  application 
to  the  probate  court  for  the  appointment  of  special  commis- 
sioners or  a  jury.  This  attempt  is  essential  in  order  to 
confer  jurisdiction  upon  the  probate  court.  In  this  respect 
it  follows  the  rule  of  law  for  condemnation  of  railroad  right 
of  way1.  The  fact  of  inability  to  agree  is  jurisdictional 
and  may  be  controverted.  The  good  faith  of  the  attempt 
may  be  denied2.  A  person  who  purchases  land  after  the 
survey  has  been  made,  cannot  complain  because  the  minutes 
of  survey  do  not  show  the  distance  across  his  land,  where 
such  land  is  only  a  portion  of  a  larger  tract  which,  at  the 
survey,  were  owned  by  one  person3.  Until  the  commis- 
sioner has  attempted  to  secure  a  right  of  way,  no  notice 
is  required  to  be  given  to  any  party4.  Parties  whose  lands 
are  not  traversed  by  the  drain  cannot  set  up  defects  in  con- 
demnation proceedings.  Where  parties  are  only  liable  to  an 

1.    Whisler  v.  Drain  Com'r.,  40  2.      Gd.    Rapids,    etc.,    Ry.    v. 

Mich.     591 ;     Dickinson     v.     Van  Weiden,  69  Mich.  572. 

Wormer,  39  Mich.   141;   Chicago,  3.    Hackett      v.      Brown,      128 

etc.,  Ry.  v.  Sanford,  23  Mich.  518;  Mich.  141. 

Arnold    v.     Decatur    Village.    29  4.     Kinnie    v.    Bare,    68    Mich. 

Mich.  77;  Morseman  v.  Ionia,  32  625;    Wolpert    v.    Newcome,    106 

Mich.  283.  Mich.  357,  361. 


I 
£  261  THE  LAW   OF  TAXATION  364 

assessment  for  benefits  the  proceedings  are  ex  parte  as  to 
them  until  the  notice  of  letting  of  contracts  and  apportion- 
ment of  benefit  is  given5. 

§261.     When  Release  Unnecessary. 

Upon  the  cleaning  out  of  a  drain,  it  is  not  necessary  to 
acquire  a  new  right  of  way;  and  the  necessity  thereof  is  not 
a  question  for  the  jury  unless  an  individual  is  in  some  way 
damaged6.  Neither  is  it  necessary  to  obtain  a  release  for 
the  use  of  part  of  an  existing  watercourse  when  its  size  or 
condition  is  not  changed7.  Although  the  release  does  not 
cover  all  of  the  ground,  specified  in  the  first  order,  yet  if  in 
fact  sufficient  ground  is  released  for  the  purpose  of  the 
drain,  a  person  not  injured  thereby  cannot  complain;  as 
where  all  of  the  land  is  taken  from  one  side  of  the  center 
line  of  the  drain,  instead  of  from  both  sides8.  It  is  neces- 
sary to  obtain  a  release  from  a  railroad  company  for  cross- 
ing its  right  of  way  with  a  drain,  or  compensate  it  in  dam- 
ages. A  provision  to  the  countrary  is  unconstitutional9.  A 
release,  however,  signed  by  the  officers  of  the  company, 
accompanied  by  the  building  of  a  culvert  in  pursuance  of 
the  drain  proceedings,  cannot  afterwards  be  questioned10. 

5.  Hinckley     v.      Bishop,     152          8.     Hauser     v.      Burbank,     117 
Mich.  256;  Roberts  v.  Smith,  115       Mich.  642. 

Mich.  5.  9.     C.   L.    §4334;    Chicago,    etc., 

6.  Barker  v.  Mt.  Vernon  Twp.,      Ry.  v.  Chappell,  124  Mich.  72. 

63  Mich.  516,  517.  10.     Sturm  v.  Kelley,  120  Mich. 

7.  Brady     v.      Hayward.      114      685. 
Mich.  326,  334. 


CHAPTER  XVI. 
PROCEEDINGS  IN  PROBATE  COURT. 

9262.     Application. 

Form  for  Petition. 
5263.     Description  of  Lands. 

Form   for  Order  for  Appointment  of   Special  Guardian. 
9264.    Citation. 

Form  of  Citation. 

5265.  Notice. 

Form  for  Printer's  Affidavit. 

5266.  Hearing. 

Form   for   Summons. 

5267.  Appointment  of  Special   Commissioners. 

5268.  Order  Appointing. 

Form  for  Order  Appointing  of  Special  Commissioners. 

5269.  Oath  of  Special  Commissioner. 

Form  for  Oath  of  Special  Commissioners. 

5270.  Adjournment  of  Special  Commissioners. 

5271.  Return  of  Special  Commissioners. 

Form  for  Return  of  Special  Commissioners. 

5272.  Disagreement  of  Special  Commissioners. 

5273.  Venire  for  Jury. 

Form   for  Sheriff's  Oath. 

5274.  Return  of  Jury. 

Form  for  Jury  to  Sign. 

Form  for  Order  Confirming  Report  of  Jury. 

5275.  Disagreement  of  Jury. 

5276.  Confirmation  of  Report  of  Jury. 

Form  of  Order  Confirming  Report  of  Jury. 

5277.  Delay  in  Proceedings. 

5278.  De  novo  Proceedings. 

£262.     Application. 

The  statute  does  not  require  that  it  be  sworn  to1.  Neither, 
under  the  original  Act  of  1885,  was  it  necessary  that  a  copy 

1.  C.  L.  54322 ;  Kinnie  v.  Bare,  land  could  call  in  the  fence 

80  Mich.  345.  viewers  to  compel  the  digging  of 

There  have  been  various  meth-  a  drain  on  a  farm  line  in  the 

ods  in  use  to  determine  damages.  same  manner  substantially  that 

Until  latter  years,  the  question  of  they  now  divide  line  fences, 

public  necessity,  and  notice  of  (Laws  of  1827,  Vol.  2,  p.  325). 

proceedings  taken,  was  largely  or  This  law  appears  to  have  been  in 

entirely  overlooked  by  the  legis-  effect  until  1857.  In  1839  a  land 

lature.  In  1819,  the  supervisor,  in  owner  could  apply  to  a  justice  of 

his  judgment,  could  dig  a  ditch  the  peace  to  determine  the 

in  the  highway.  (Laws  of  1819.  damages  of  digging  a  ditch  across 

p.  453-4).  In  1827,  an  owner  of  another  person's  lajid.  In  1859, 


§262 


THE  LAW  OF  TAXATION 


3G6 


of  the  minutes  of  survey  be  attached  thereto;  it  was  suffi- 
cient to  refer  to  the  first  order,  which  must  be  filed  with  the 
application2.  No  condemnation,  and  consequently  no  appli- 
cation to  the  probate  court,  is  necessary  when  the  proceed- 
ings strictly  comtemplate  a  cleaning  out  of  the  drain3. 
Where  a  petition  is  dismissed  for  irregularities  not  affecting 
the  preceeding  papers,  or  where  the  petition  is  dismissed 
for  want  of  proper  service  of  notice  of  hearing,  another 
application  to  the  probate  court  may  be  filed  based  upon  the 
same  papers  as  the  first4.  The  original  minutes  of  survey 
need  not  accompany  the  application,  nor  need  the  copy  filed 


the  commissioners  themselves 
selected  the  names  of  24  inhabit- 
ants, each  side  striking  off  six 
of  them,  leaving  12  for  a  jury. 
(Laws  of  1859,  p.  1064).  This 
law  provided  notice  to  the  persons 
interested.  This  method  appears 
to  have  been  in  force  until  1869. 
In  1869,  the  county  drain  com- 
missioners could  either  apply  to 
the  probate  court  for  the  appoint- 
ment of  special  commissioners,  or 
could  apply  to  a  sheriff  or  con- 
stable to  write  down  the  names  of 
24  men,  each  side  striking  off  six. 
(Laws  of  1869,  p.  ,  Act  No. 
43).  In  1871  a  similar  provision 
was  made  as  to  the  highway  com- 
missioners, who  were  ex  officio 
township  drain  commissioners. 
(Act  No.  98  of  Laws  of  1871). 
Also,  in  1871,  the  county  drain 
commissioners  were  required  to 
have  the  consent  of  a  majority  of 
the  interested  resident  owners  in 
order  to  apply  to  the  probate 
court  for  special  commissioners. 
Otherwise,  they  were  required  to 
summon  a  jury.  A  protest  signed 
by  two  thirds  of  the  interested 
parties  suspended  all  further  pro- 
ceedings upon  the  drain.  (Act  No. 
169  of  Laws  of  1871).  In  1875, 
the  township  commissioner  was 


still  left  the  right  to  apply  to  the 
probate  court  for  the  appointment 
of  special  commissioners,  but  he 
himself,  if  he  desired  a  jury, 
selected  the  24  names  from  which 
the  j  ury  was  to  be  chosen.  (  Act  140 
of  Public  Acts  of  1875).  In  1881, 
both  township  and  county  drain 
commissioners  were  compelled  to 
apply  to  the  probate  court,  with 
no  provision  for  a  jury.  (Act 
No.  269  of  Public  Acts  of  1881). 
This  remained  in  force  until  1885. 
By  Act  No.  227  of  Public  Acts 
of  1885,  as  well  as  by  all  subse- 
quent drain  laws  of  which  this 
act  has  formed  the  skeleton,  the 
legislature  has  provided  fo_r  an 
application  to  the  probate  court 
where  either  special  commission- 
ers are  appointed,  or  a  jury 
drawn,  in  accordance  with  the 
practice  of  the  general  railroad 
law. 

2.  Kinnie    v.    Bare,    80    Mich. 
345. 

3.  Barker  v.  Vernon  Twp.,  63 
Mich.  516. 

4.  See    De    novo    proceedings, 
§365,   post.     Tinsman   v.   Probate 
Judge  Sup.  Court  File  No.  11778, 
McGrath's    Mandamus    cases,    N. 
611. 


:!i>7  PROCEEDINGS  IN  PROBATE  COURT  §262 

in  the  probate  court  be  signed  by  the  surveyor8.  A  bill  in 
equity  will  not  lie,  for  alleged  defects  in  the  application  to 
act  on  a  drain,  to  restrain  the  drain  commissioner  from 
making  his  application  to  the  probate  court.  The  probate 
court  is  the  proper  tribunal  to  first  pass  upon  all  prior  pro- 
ceedings; and  if  either  party  is  aggrieved  by  its  action,  they 
may  take  the  statutory  certiorari6.  It  is  sufficient  if  one 
land  owner  refuses  to  release ;  the  fact  that  he  has  not  asked 
others  will  not  bar  an  application7. 

Form  for  Petition. 
State  of  Michigan. 

The  Probate  Court  of  the  County  of 

Your  petitioner  , the  drain  commissioner 

County,  Michigan,  respectfully  shows: 

i.  That  on  the day  of ,  an 

application  in  writing  being  dated  the day  of 

,  was  filed  uith  him  as  county  drain  com- 
missioner of  said  county,  praying  for  the  locating  and  es- 
tablishing a  drain  in  the  township  of  . ., , 

county  of ,  Michigan,  a  certified  copy  of 

which  application  accompanies  this  application. 

Said  application  was  made  in  due  conformity  unth  the 
Statute,  one-third  of  all  the  freeholders  and  owners  of  land 
traversed  by  the  proposed  drain,  each  of  which  signers  is 
the  owner  of  land  which  is  liable  to  an  assessment  for  bene- 
fits on  the  construction  of  the  drain. 

That  as  soon  thereafter  as  practicable,  your  petitioner 
proceeded  to  examine  the  route  of  the  proposed  drain  and 

5.  Hackett      v.      Brown,      128      311. 

Mich.  141.  7.    Patterson     v.      Mead,      148 

6.  Strack  v.  Miller,  i:M  Mich.      Mich.  659. 


§  262  THE  LAW  OF  TAXATION  368 

was  of  the  opinion  that  it  was  necessary  fur  the  good  of 
the  public  health,  and  practicable,  that  said  application 
should  be  granted. 

As  a  means  of  determining  the  practicability  of  the  said 
proposed  drain,  your  petitioner  caused  a  survey  and  meas- 
urement of  the  said  proposed  drain  to  be  made  by 

,  a  competent  surveyor,  which  survey  was 

completed  on , day  of ,  and 

upon  such  survey  he  found  that  such  proposed  drain  was 
practicable. 

That  the  route,  line,  commencement,  terminus,  grade,  cut 
and  excavations  of  said  drain  are  set  forth  in  the  said  min- 
utes of  survey,  a  copy  is  hereto  attached  and  marked  Ex.  A. 

2.  That  your  petitioner  as  such  county  drain  commis- 
sioner as  aforesaid,  on  the day  of , 

made  an  order  in  writing,  determining  that  the  construction 
of  the  said  proposed  drain  practicable  and  necessary  for  the 
good  of  the  public  health,  and  that  said  application  should 

be  granted  and  said  drain  should  be  known  as  the 

Drain,  and  that  said  drain  should  and  ought  to  be  located 
and  established  in  accordance  zvith  the  application  and  sur- 
vey thereof,  set  forth  in  Ex.  A. 

That  twenty  days  and  more  have  elapsed  since  the  making 
of  the  first  order  of  determination  aforesaid,  and  that  all 
persons  through  whose  lands  the  said  proposed  drain  is  to 
pass  hare  not  executed  a  release  of  right  of  way  and  dam- 
ages on  account  thereof;  and  whereas  your  petitioner  has 
endeavored  during  the  said  period  of  twenty  days  and 
since,  to  obtain  said  several  releases  as  aforesaid,  and  hav- 
ing attempted  to  agree  with  all  such  persons  for  such  re- 
leases and  not  hainng  been  able  to  do  so; 

Now,  therefore,  your  petitioner,  as  such  county  drain 
commissioner,  hereby  makes  application  to  the  Probate 


:;•;«.»  PROCEEDINGS  IN  PROBATE  COURT 


Court  for  the  said  County  of  ................  ,  in 

said  county  the  said  lands  arc  situated,  and  petitions  the 
court  for  the  appointment  of  three  disinterested  commis- 
sioners who  shall  be  residents  and  freeholders  of  tlie  county 
of  ..........  ,  but  not  of  the  said  township  of  .......... 

traversed  or  affected  by  such  drain  to  determine*  the  neces- 
sity therefor  for  the  taking  of  private  property  for  the  use 
and  benefit  of  the  public  for  the  purpose  aforesaid,  and  to 
award  the  just  compensation  for  each  particular  tract  to  be 
taken  therefor  according  to  law; 

And  your  petitioner  shows: 

j.  That  the  names  of  the  owners  of  land  traversed  by 
said  proposed  drain  who  neglected  and  refused  to  execute  a 
release  of  right  of  way  and  damages  in  rny  way  arising 
from  or  incident  to  the  opening  and  perpetual  main  t  a!  nance 
of  said  drain,  placed  opposite  their  respective  descriptions, 
are  as  follows,  to-wit;  all  of  such  owners  being  residents  of 
the  said  county  of  ..........  .  .  unless  otherwise  specified: 

John  Doe,  owner  of  tract  southwest  quarter  and  section 
24  west  half  of  west  half  of  southwest  quarter  of  section 
24,  north  of  range  eight  east,  from  which  premises  there  is 
sought  to  be  taken  a  strip  of  land  ................  rods 

wide  on  each  side  of  the  center  line  of  said  drain  according 
to  the  survey  thereof:  for  excavating  three  one  hundreths 
acres,  to  deposit  excavation  twenty-four  one  huudreths 
acres.  Your  petitioner  asks  that  Mrs.  John  Doe,  unfe  of 
the  above  named  party,  be  made  a  party  hereto,  because  of 
her  dower  interest. 

Your  petitioner  further  sho-^s  that  all  other  persons  o?vn- 
ing  lands  traversed  by  said  proposed  drain  hai'c  ditJ\  and 
properly  released  the  right  of  li-ay  therefor. 
Dated,  this  ............  day  of  ............ 


County  Drain  Commissioner. 


§  263  THE  LAW  OF  TAXATION  370 

§263.     Description  of  Lands. 

The  statute  requires  that  the  application  shall  set  forth 
the  names  of  the  persons,  if  known,  who  have  not  released 
the  right  of  way  and  damages,  the  description  of  land  owned 
by  each  such  person  who  will  be  affected  by  the  drain,  and 
the  fact  that  they  have  neglected  or  refused  to  execute 
releases  of  right  of  way  and  damages.  The  plain  meaning 
of  the  statute  is  that  each  parcel  belonging  to  separate 
owners  shall  be  set  forth,  and  the  application  shall  contain 
a  description  of  the  land  proposed  to  be  taken  for  the  drain 
described  with  as  much  certainty  and  particularity  as  is 
necessary  in  a  deed  of  conveyance  of  bargain  and  sale.  It 
should  contain  such  data  that  its  precise  location  may  be 
found  by  the  commissioners  or  jury,  and  its  area  computed. 
Where  the  description  consists  of  a  line  merely,  and  em- 
braces nothing,  it  is  fatally  defective8. 

Where  land  is  to  be  taken  from  the  private  owner  for 
public  purposes,  the  description  should  be  as  definite  as  is 
necessary  in  a  deed ;  and  if  several  successive  steps  are  to  be 
taken,  in  the  course  of  which  the  land  must  be  identified  and 
described,  the  description  should  be  sufficient  in  every  in- 
stance, that  it  may  be  seen  that  the  successive  steps  are  noi 
referable  to  different  premises.  The  importance  of  this  is 
especially  manifest  since  a  negotiation  with  the  owner  is 
contemplated ;  and  if  no  precise  description  of  the  land 
appears  until  at  a  late  stage  of  the  proceedings,  it  can  never 
be  known  from  the  record  whether  the  negotiation  was  or 
was  not.  for  the  land  finally  described,  or  whether  the 
negotiations  would  have  failed  if  the  owner  had  been 
notified  what  the  precise  limits  were  of  the  land  proposed 
to  be  taken9. 

8.     Kinnie    v.    Bare,    68    Mich.      Mich.  *78. 

825,    630;    Kroop   v.    Forman,   31         9.    Mathias  v.  Carson,  49  Mich. 
Mich.    144;    Nugent    v.    Erb,    90      465.    Public  Acts  of  1885,  Act  227, 


:;;  1          PROCEEDINGS  IN  PROBATE  COURT 

Form  for  Order  for  Appointment  for  Special  Guardian. 

State  of  Michigan. 

County  of   

.-//  (;  session  of  the  Probate  Court  for  the  county  of 

at  the  probate  office  in  the  city  of 

,  on  the day  of , 

present  Honorable ,  Judge  of  Probate. 

In  the  matter  of  the  application  of  the  county  drain  com- 
missioner for  the  appointment  of  special  commissioners  to 
determine  the  necessity  of drain. 

ll'hereas,  application  has  this  day  been  made  in  writing 
/.-  tliis  court  by  the  county  drain  commissioner  for  the 

appointment  of  special  commissioners  as 

aforesaid ; 

Therefor  it  is  ordered  that day  of , 

at  10  o'clock  in  the  forenoon  of  that  day,  at  the  office  of  the 

Judge  of  Probate  in  the  city  of  ,  said  county, 

the  same  is  hereby  appointed  as  the  time 

and  place  of  hearing,  of  such  application  before  this  court. 

It  is  also  ordered  that  of the 

same  is  hereby  appointed  special  guardian  to  appear  for  ami 

attend  to  the  interest  of affected  by 

such  proceedings  and  interested  in  said  matter. 

It  is  further  ordered  that  notice  of  this  hearing  be  given 

to  all  persons  interested, ,  Judge  of 

Probate. 


Chap.  Ill,  85,  required  the  citation  served  upon  the  owners  of  lands 

to    be    served    upon    all    persons  traversed  by  the  drain,  who  had 

interested  or  liable  to  an  assess-  not    released    the    right    of    way. 

ment  for  benefits.    This  continued  This    provision    has    been    main- 

in   force  until   1895.    Public   Acts  tained     through     the     subsequent 

of   1895.   Chap.   ITT,   §5,  provides  acts, 
that    the    citation    shall    only    be 


§  264  THE  LAW  OF  TAXATION  372 

§264.     Citation. 

The  object  of  the  citation  is  to  afford  a  hearing  to  the 
parties  interested,  giving  them  an  opportunity  to  make 
objections  and  to  take  part  in  the  selection  of  special  com- 
missioners or  jury10.  It  should  contain  the  names  of  the 
non-resident  owners,  if  known.  Unless  the  citation  runs 
to  such  as  are  known,  by  name,  it  will  be  invalid11.  Naming 
the  husband  as  owner,  instead  of  the  wife,  is  fatal  where 
there  is  no  personal  service12. 

Under  3  H.  S.  §1740cl,  the  citation  was  required  "to 
set  forth  that  lands  owned  by  the  persons  to  whom  it  is 
addressed  will  be  crossed  by  such  drain,  or  will  be  subject 
to  an  assessment  for  its  construction,  and  that  a  description 
and  survey  of  such  drain  is  on  file  with  the  court  issuing 
such  citation."  A  citation  which  affords  precise  data  for 
determining  that  a  particular  description  was  crossed  by  the 
drain,  although  it  did  not  specifically  state  that  such  partic- 
ular description  was  traversed  by  the  drain,  is  good.  It  is 
not  necessary  to  use  the  exact  language  of  the  statute,  when 
the  citation  contains  the  substance,  and  the  party  is  not 
misled13.  Act  217  of  Public  Acts  of  1895  requires  only 
that  parties  whose  lands  are  traversed  by  the  drain  shall  be 
made  parties  in  the  probate  court.  There  is  no  constitutional 
provision  that  parties  who  may  be  assessed  upon  an  im- 
provement shall  have  an  opportunity  to  be  heard  upon  its 
necessity.  The  provisions  of  Art.  XVIII,  §§2,  14,  or  Art. 
VIII,  §§2,  3  of  Constitution  of  1908  have  reference  only 

10.  C.     L.     §4324;     Kinnie     v.  jurisdictional;  Patterson  v.  Mead, 
Bare,    68    Mich.    634;    Wolpert  v.  14  L.  N.  326,  138  Mich.  659. 
Newcome,  106  Mich.  357.  12.     Bixby    v.    Goss,    54    Mich. 

11.  Campau  v.  Charbeneau,  105  551. 

Mich.    422,    construing    Act    203,          13.     Wolpert  v.  Newcome,    106 
Public    Acts    1893;    but    that    has      Mich.  357,  360. 
since     been     amended,     and     not 


PROCEEDINGS  IX  PROBATE  COURT 

to  the  taking  of  specific  property  for  public  uses.  There 
is  nothing  in  these  provisions  to  prevent  the  determination 
of  the  necessity  of  a  drain  by  the  drain  commissioner,  sub- 
ject to  the  limitations  on  the  conclusiveness  of  that  deter- 
mination in  favor  of  the  owner  of  the  land  proposed  to  be 
taken,  in  tiie  defense  of  condemnation  proceedings,  to  which 
proceedings  those  liable  to  an  assessment  for  benefits  need 
not  be  parties14. 

The  statute  does  not  require  the  citation  to  be  issued 
under  the  seal  of  the  court,  nor  is  it  such  a  process  as  the 
constitution  requires  to  be  "in  the  name  of  the  People  of  the 
State  of  Michigan."  The  citation  may  be  served  by  any 
competent  third  party  without  a  special  appointment,  who 
makes  his  return  by  affidavit15.  The  citation,  however, 
must  be  signed  by  the  probate  judge10.  It  need  not  run  to 
the  supervisor  of  a  township17,  nor  to  the  highway  com- 
missioner18. 

Form  of  Citation. 

State  of  Michigan.      ) 

Cr  i  SSt 

aunty  of ) 

Citation  to  persons  whose  lands  are  traversed  or  affected 

by drain  in  tlie  to:vnship  of 

county,  Michigan.     To  the  toutiship  of in 

said  county as  supervisor  of  said  township, 

and  to   as  the  highway  commissioner  of 

said  township,  and  to  (give  all  the  names  of  those  who  have 

14.    Roberts  v.  Smith,  115  Mich.  a    drain,    that    being    an    admin- 

5,  7.  istrative  act. 

!.">.     \Volpert   v.   Newcome,    106  16.    Taylor  v.  Burnap.  39  Mich. 

Mich.    357,    361;    In    Gratoph    v.  739. 

Probate   Judge,    McGrath    Man-  17.    Flynn    Twp.    v.    Woolman. 

damus   cases   No.   610,   it  is   held  133  Mich.  508. 

th.-M   a  probate  judge  though  dis-  18.    Kiley   v.    Bond,    114   Mich, 

qualified,  may  issue  a  citation  on  447. 


$  204  THE  LAW  OF  TAXATION  374 

not  released  the  right  of  way)  and  to  the  owners  and  per- 
sons interested  in  the  following  described  tracts  of  land  in 

the  township  of  ,  county  of  , 

Michigan,  which  are  the  lands  traversed  by  the  proposed 
drain,  to-wit: — (describe,  by  its  correct  description,  every 
partial  of  land  traversed  by  the  drain  where  a  release  of 
right  of  way  has  not  been  obtained,  give  the  number  of 
acres  proposed  to  be  taken.) 

Whereas county  drain  commissioner  of 

county.  Michigan,  has  made  application  in 

•;>.';  itiii(;  .'<'?  the  Probate  C.nc  t  for  the  said  county  of 

bearing  date  the day  of ,  /pop, 

for  the  appointment  of  three  special  com- 
missioners to  determine  the  necessity  for  the  good  of  the 

public  health  of  the  laying  out  and  establishing  the 

drain,  therein  described,  commencing  at  the  point  (give  the 
commencement  and  terminus  of  the  drain  and  the  route 
thereof  as  shown  by  the  minutes  of  survey,  accurately,  show- 
ing where  the  line  of  the  drain  crosses  each  piece  of  land.) 

And,  whereas,  the  said  drain  commissioner  has  filed  in 
this  court  a  certified  copy  of  the  application  for  the  laying 
out  and  establishing  of  the  said  proposed  drain  signed  by 

more  tJwn  one-third  of  all  of  the  owners  of  land  in  the  said 

1  i 

townships  traversed  by  the  said  drain,  each  of  whom  are 

the  owners  of  land  which  will  be  liable  to  an  assessment  for 
benefits  on  the  construction  of  the  said  drain,  said  signers 

being in  number: 

And,  zi'hereas,  the  said  commissioner  has  also  filed  his 
first  order  of  determination  in  this  court  on  said  drain,  bear- 
ing date  the day  of ,  release 

of  right  of  way  so  far  is  obtained,  map,  profile  and  minutes 
of  survey  thereof,  signed  by  the  surveyor  thereof,  which 
survey  ivas  completed  on  the day  of 


375          PROCEEDINGS  IN  PROBATE  COURT         §  264 

( the  first  order  of  determination  must  be  made  within  ninety 
days  after  the  completion  of  the  survey). 

And,  whereas,  the  said  commissioner,  in  his  said  applica- 
tion lias  set  forth  the  description  of  all  lands  traversed  by 
the  proposed  drain,  and  the  owners  thereof,  who  have  not 
released  the  right  of  way  therefor  requested  so  to  do; 

And,  whereas,  on  an  examination  by  me  of  the  proceed- 
ings of  the  said  commissioner  the  same  were  found  to  be 
by  me  in  accordance  with  the  statute; 

And,  whereas,  at  the  time  of  the  filing  of  the  said  appli- 
cation the  said  court  did  appoint  the day  of 

,  at  10  o'clock  in  the  forenoon  of  that  day  as 

the  time  of  the  tearing  on  said  application; 

And,  whereas,  from  said  proceedings  it  appears  that  said 
proposed  drain  will  cost  or  affect  land  owned  by  you,  and 
that  you  have  not  released  the  right  of  way  therefor; 

You,  and  each  of  you,  are  hereby  cited  to  appear  before 

the  Probate  Court  of  the  said  county  of ,  in 

the  city  of in  said  county,  on  the 

day  of ,  at  10  o'clock  in  the  forenoon  of  said 

date,  to  be  heard,  if  you  shall  desire  to  do  so,  with  respect 
to  the  application  of  the  said  drain  commissioner,  for  the 
appointment  of  three  special  commissioners  to  determine  the 
necessity  for  the  good  of  the  public  health  of  the  laying  out 
and  establishing  of  the  drain  described  in  said  application 
and  the  necessity  of  taking  prirate  property  for  the  use  and 
bencnt  of  the  public  for  the  purpose  thereof  and  the  just 
compensation  to  be  made  for  each  particular  tract  therefor. 

In  testimony  whereof  I  hare  hereunto  set  my  hand  and 
caused  the  seal  of  the  said  probate  court  to  be  affixed  here- 
to at  the  r/'/v  of on  the da\ 

of    •'.... 


Judge  of  Probate. 


THE  LAW  OF  TAXATION  376 


§265.     Notice. 


Notice  of  the  time  and  place  when  the  proceedings  will 
be  heard  before  the  probate  judge  must  always  be  given 
when  it  is  sought  to  deprive  the  citizen  of  his  property19.  If 
the  notice  is  not  expressly  provided  for  in  the  law  itself, 
it  is  in  all  such  cases  necessarily  implied;  and  the  failure 
to  give  such  notice  renders  the  proceedings,  even  though 
otherwise  regular,  null  and  void20.  The  law  regards  the 
drain  commissioner  as  representing  in  some  degree,  adverse 
interests.  He  acts  as  an  adverse  representative  in  striking 
off  jurors,  and  possesses  the  very  dangerous  discretion  of 
choosing  to  dispense  with  jurors  altogether.  (Act  140  of 
Public  Acts  of  1875.)  A  person  acting  in  such  a  capacity 
cannot  be  allowed  to  proceed  by  his  own  suggestions  before 
the  probate  court  without  giving  his  adversary  a  chance 
to  object  to  improper  commissioners  and  suggest  proper 
ones.  There  can  be  no  presumption  that  the  probate  court 
will  be  able  to  secure  entirely  impartial  commissioners  when 
no  one  is  present  to  scrutinize  them.  The  judge  can  have  no 
means  of  searching  out  possible  objections21. 

Under  the  law  of  1885,  mortgagees  and  lessees,  unless 
they  had  a  peculiar  interest,  were  not  entitled  to  notice  of 
proceedings  in  the  probate  court.  Neither  did  it  require 
notice  to  be  served  upon  a  land  owner  not  traversed  or 
affected  by  the  drain22.  Proof  of  service  of  the  requisite 
notice  must  be  on  file  in  the  probate  court  before  he  has 

19.     Whiteford  Twp.  v.  Probate  Drain  Com'r.,  40  Mich.  229  ;  Shue 

Judge,  53  Mich.  130,  134;  Reinig  v.  Highway  Com'r.,  41  Mich.  638. 

v.  Munson,  46  Mich.  138  ;  Daniels  20.     Strachan   v.    Drain   Com'r., 

v.  Smith,  38  Mich.  660  ;  Bixby  v.  39  Mich.  168  ;  Willcheck  v.  Drain 

Goss,   54   Mich.  551  ;   Lampson  v.  Corn's.,  42  Mich.  105. 

Drain     Com'r..     45     Mich.     150  ;  21.     Strachan   v.   Drain   Com'r., 

Bettis  v.  Probate  Judge,  54  Mich.  39  Mich.  168. 

608;      Van      Buskirk      v.      Drain  22.     Kinnie    v.    Bare,    80    Mich. 

Com'r.,   48    Mich.   258;    Milton   v.  345,  347. 


:; ",  ;          PROCEEDINGS  IN  PROBATE  COURT 

jurisdiction  to  appoint  special  commissioners38.  The  super- 
visor of  a  township  is  not  entitled  to  notice  of  proceedings 
in  the  probate  court24.  Nor  is  there  any  provision  requiring 
that  the  highway  commissioner  be  served  with  notice  of 
such  proceedings25.  When  a  third  person  has  purchased 
land  after  the  institution  of  condemnation  proceedings,  he 
is  not  in  a  position  to  review  the  proceedings  by  certiorari. 
and  it  would  seem  that  he  was  not  therefore  entitled  to 
notice26. 

The  notice  is  in  the  nature  of  a  process;  and  it  is  in- 
dispensable that  the  notice  be  legal  evidence  of  its  proper 
service.  It  can  make  no  difference  that  the  commissioner 
ha<!  personal  knowledge  that  the  notice  had  been  given. 
His  oral  statement  would  not  be  evidence  to  third  persons. 
who  were  entitled,  when  such  interests  are  involved,  to  have 
the  facts  placed  on  record27.  Where  the  statute  does  not 
require  personal  service,  the  notice  by  publication  is  suffi- 
cient28. There  can  be  no  constructive  notice,  however, 
where  the  commissioner  did  not  acquire  jurisdiction29.  The 
affidavit  must  specify  how  the  notice  was  given ;  and  the 
return  that  the  officer  served  the  notice  required  by  statute, 
is  a  nullity30.  The  affidavit  must  state  how,  when,  and  on 
whom  the  notice  was  served;  and  in  computing  time,  the 
day  of  service  and  day  of  hearing  must  be  excluded,  where 
the  statute  requires  "at  least"  a  certain  number  of  days 
notice  to  be  given31.  A  land  owner  cannot  object  that  a 

23.  Bennett  v.  OIney,  56  Mich.          28.     Smith  v.  Carlow,  114  Mich. 
634,     637;     Tireman     v.     Drain      67,  69. 

Com'r..  40  Mich.  175.  29.     Harbaugh     v.     Martin.     :'.t> 

24.  Flynn    Twp.    v.    Woolman,      Mich.  234. 

133  Mich.  508.  30.    Wright  v.  Drain  Com'r..  44 

25.  Kiley   v.  Bond,    114   Mich.      Mich.     557;     Dickinson     v.     Van 
447.  Wormer,  39  Mich.  141. 

26.  Hackett  v.      Brown,     128         31.    Lane  v.   Burnap,   39   Mich. 
Mich.  141.  736;    Livermore    v.    Burnap.    39 

27.  See  also  §346;  Tireman  v.      Mich.   350;    Purdy   v.   Martin.   31 
Drain  Com'r.,  40  Mich.  175.  Mich.  455. 


§§  266,  267  THE   LAW  OF  TAXATION  378 

municipal  officer  has  not  received  notice  of  proceedings  in 
the  probate  court.  Such  owners  must  stand  upon  their  own 
equities  and  jurisdictional  defects32. 

Form  for  Printer's  Affidavit. 

State  of  Michigan. 
County  of 

being  duly  sworn 

deposes   and   says  that  he  is   one  of  the  printers   of   The 

,  a  newspaper  published  and  circulated 

in  the  said  County  of  . ,  and  that  a  notice  of 

which  the  annexed  printed  notice  is  a  true  copy  has  been 

duly  published  in  said  paper  once  in  each  week  for 

successive  weeks;  that  the  first  publication  thereof  was  on 

the day  of ,  i ;  and 

the  second  publication  thereof  was  on  the day 

on  the day  of ,  i ;  and 

of ,  i ;  and  the  third  publication  ivas 

the  fourth  publication  thereof  was  on  the day 

of  ,  i ;   

Sworn  to  and  subscribed  before  me  this   

day  of , 


Notary  Public, County,  Mich. 

My  Commission  expires 

§266.     Hearing. 

The  statute  requiring  the  hearing  to  be  fixed  within  forty 
days  from  the  time  of  filing  the  application  does  not  require 
a  hearing  within  the  forty  days,  as  the  court  has  power  to 

32.     Kiley   v.    BoriS,    114   Mich.          Act    No.    1ST   of   1891   provides 
447.  for     adjournments     of     hearings. 


379          PROCEEDINGS  IN  PROBATE  COURT         §  267 

adjourn  thereafter.  No  other  notice  of  an  adjournment 
than  a  public  anouncement  thereof  is  required38.  Where 
the  probate  court  makes  a  mistake  in  the  name  of  a.  com- 
missioner, and  the  party  intended  to  have  been  appointed 
serves,  the  proceeding  is  fatal.  The  court  can  not  go  be- 
hind an  order  of  the  probate  court  to  discover  an  intent 
different  from  the  one  expressed84. 

^267.     Special  Commissioners.     Appointment. 

The  special  commissioners  can  only  be  appointed  after 
proof  of  service  of  the  required  notice  has  been  given  and 
filed  with  the  probate  court.  Therefore,  if  the  probate  court 
announces  certain  persons  as  being  appointed,  and  before 
entering  the  order  but  after  persons  in  interest  have  left, 
substitutes  other  names,  such  appointment  is  void  since  it 
is  equivalent  to  appointing  without  any  notice.  The  statute 
requires  the  appointment  of  commissioners  to  be  made  upon 
citation.  This  is  for  the  purpose  of  affording  opportunity 
for  those  interested  to  make  such  objections  to  the  pro- 
ceedings as  they  see  fit,  as  well  as  to  object  for  cause  to  the 
selection  made  by  the  judge  of  probate.  The  commissioners 
must  be  disinterested  men ;  and  if  it  should  turn  out,  after 
the  appointment  was  made,  that  one  or  more  was  interested 
or  otherwise  disqualified,  the  judge  of  probate  would  un- 
doubtedly have  authority  to  vacate  the  order  appointing 
them,  and  issue  a  new  citation  for  the  purpose  of  appointing 
qualified  men.  The  statute  did  not  provide  for  filling 
vacancies  in  such  emergencies.  The  result  is,  the  judge,  if 

Act   No.  203   of   1893,   Chap.   III.  Bare,  80  Mich.  345,  349. 

88,  provides  for  bringing  omitted  34.     Bench    v.    Otis,    25    Mich, 

or  new  parties  before  the  Probate  29,  where  by  mistake,  Henry  Rad- 

Court  without  starting  anew.  ford  was  called  William  Radford. 
33.     C.     L.     54325;     Kinnie     v. 


§  268  THE  LAW  OF  TAXATION  380 

he  has  acquired  jurisdiction,  must  begin  de  novo35.  Although 
the  statute  requires  the  jury  or  special  commissioners  to  be 
freeholders,  yet,  if  a  party  is  present  and  aids  in  striking 
or  selecting  them,  and  expresses  himself  as  satisfied,  he 
cannot  afterward  object  because  they  are  not  all  free- 
holders36. When  special  commissioners  disagree,  it  not 
appearing  in  what  manner  nor  how  they  are  divided,  new 
commissioners  may  be  appointed37. 

§268.     Order  Appointment. 

The  order  of  the  probate  court  must  identify  the  drain 
and  the  separate  parcels  of  land  proposed  to  be  taken;  other- 
wise, the  commissioners  cannot  identify  the  land  that  ought 
to  be  taken  in  their  return.  The  fair  inference  is  that  the 
commissioners  cannot  in  their  report,  supply  ommissions 
either  of  the  drain  commissioner  or  of  the  probate  judge. 
They  are  required  to  have  all  of  the  drain  proceedings  be- 
fore them  when  they  act,  and  are  confined  to  the  inform- 
ation therein  contained  as  to  the  specifications  of  the  drain 
and  lands  to  be  taken38.  The  order  must  describe  the  prop- 
erty to  be  taken;  and  if  it  gives  only  the  line  of  the  drain 
without  its  dimensions,  it  will  be  fatally  defective39.  The 
description  of  the  land  to  be  taken  at  every  stage  necessary 
to  be  stated,  should  be  as  definite  as  would  be  necessary  for 

35.     C.     L.     §4325;     Kinnie     v.  of    the    county,    but    not    of    the 

Bare,  68  Mich.  625,  632.  townships  traversed  by  the  drain. 

Act  No.  227  of  1885,  Chap.  Ill,  36.     Clark  v.   Drain   Com'r.,   50 

§7,  required  special  commissioners  Mich.  618,  620. 

to  be  disinterested  freeholders  of  37.     Parker     v.     Lincoln,      114 

the    county.      This    remained    in  Mich.  306. 

force  until  1897.     Act  No.  254  of  38.     C.    L.    §4326;    Bennett    v. 

1897,     Chap.     Ill,     §3,     requires  Olney,  56  Mich.  634,  637. 

special   commissioners  to  be  dis-  39.    Kroop  v.  Forman,  31  Mich, 

interested     freeholders,     residents  144. 


381          PROCEEDINGS  IN  PROBATE  COURT         §  268 

a  deed40.    A  clerical  error  in  the  first  name  of  one  of  the 

i 

commissioners   appointed   is   fatal,   and   will   require   a  de 
novo  appointment  of  the  commissioners41. 

Form  for  Order  of  Appointment  of  Special  Commissioners. 

State  of  Michigan.      ) 
County  of  ......  ..  .  j 

At  a  session  of  the  Probate  Court  for  the  County  of 
............  .  .  ,  held  at  the  Probate  office  in  the  city  of 

..............  ,  on  the  ............  day  of  ..........  , 


frcsent,  Hon  ....................  ,  Probate  Jndgc. 

In  the  matter  of  the  application  of  the  county  drain  com- 
missioner of  said  county  for  the  appointment  of  three 
special  commissioners  to  determine  the  necessity  of  the 
laying  out  and  establishing  ..............  Drain. 

Whereas,  on  the   ..........    day  of   ..............  , 

/  ......  ,  an  application  in  writing  was  made  to  this  court 

by  the  said  drain  commissioner  for  the  appointment  of  three 
special    commissioners    to    determine    the    necessity    for 
deepening  and  widening  a  drain  through  certain  lands  in 
the  said  township  ..........  and  for  the  taking  of  private 

prope-rty  for  the  use  and  benefit  of  the  public  for  the  pur- 
pose thereof  and  the  just  compensation  for  each  particular 
tract  to  be  paid  therefor. 

And,    whereas,    this   court   did    thereupon    appoint    the 
............  day  of  ............  ,  /  ......  ,  at  10  A.  M. 

as  the  time  of  hearing  on  said  application  and  issue  a  cita- 
tion to  the  persons  therein  named,  setting  forth  that  on 

40.    Mathias     v.      Carson,     49      Erb,  90  Mich.  278. 
Mich.     465;      Milton     v.      Drain          41.     Bench    v.    Otis,    25    Mich. 
Com'r.,  40  Mich.  229;  Nugent  v.      29. 


§  268  THE  LAW  OF  TAXATION  382 

the  day  of ,  / , 

at o'clock  in  the  forenoon  -of  that  day,  all  per- 
sons whose  lands  were  to  be  traversed  by  such  drain  or 
who  would  be  liable  to  an  assessment  for  benefits  in  the 
construction  thereof,  and  who  had  not  released  the  right  of 
way  and  all  damages  on  account  thereof,  were  to  appear 

at  the  office  of  the  judge  of  probate  in  the  city  of 

in  said  county,  and  show  cause  if  any  there  should  be,  why 
said  application  should  not  be  granted. 

And,  whereas,  the  court  did  appoint 

as  guardian  ad  lit  em  or  special  guardian  for 

minors  ivhich  said acted  in  behalf 

of  said  minors. 

And,  whereas,  it  appears  by  the  affidavits  of  service  and 
publication  now  on  file  with  this  court  that  said  citation 
was  duly  and  legally  served  upon  each  of  said  persons 
therein  named  who  are  resident  oivners  of  land  to  be 
effected  by  such  drain,  and  that  due  notice  was  given  to 
all  persons  who  are  non-resident  or  unknoiam  o-ivners  of 
lands  to  be  effected  by  deepening  and  widening  of  said 
drain. 

And,  whereas,  no  demand  has  been  made  at  the  time 
of  hearing  on  said  application,  by  any  person  whose  estate 
or  interest  is  to  be  effected  by  these  proceedings,  for  a  jury 
of  tivclve  freeholders; 

And,  whereas,  it  a>ppears  to  this  court  after  a  full  hear- 
ing upon  said  matter  that  no  cause  exists  why  such  special 
commissioner  should  not  be  appointed. 

THEREFOR,  it  is  ordered  by  this  court  that 


383  PROCEEDINGS  IN  PROBATE  COURT  -68 

three  disinterested  and  competent  resident  freeholders  citi- 
zens of  said  county,  but  not  of  said  townships  traversed  or 
effected  by  said  drain,  be  and  they  are  hereby  appointed  as 
such  special  commissioners  to  ascertain  and  determine  the 
necessity  of  deepening  and  widening  of  said  drain  for  the 
good  of  public  health,  and  to  appraise  and  determine  the 
just  compensation  for  each  particular  tract  to  be  made  by 
the  oumers  and  parties  interested  in  the  real  estate  proposed 
to  be  taken  for  the  right  of  way  of  such  drain,  and  all  dam- 
ages on  account  thereof. 

From  the  application  and  survey  of  said  drain,  now  on 
file  with  this  court,  the  several  persons  owning  lands  to  be 
traversed  by  said  account  thereof  liave  not  been  released, 
together  with  a  description  of  the  tracks  of  lands  oumed  b\ 
such  persons  severally,  with  the  amount  of  land  to  be  taken 
from  each  several  owner,  is  as  follows,  a  copy  of  the  minutes 
of  survey  of  said  drain  being  hereto  annexed  and  marked 
"Ex.  A"  made  a  part  of  the  description  of  lands  proposed 
to  be  taken,  to-wit: 

It  is  further  ordered  by  this  court,  with  the  concurrence 
of  the  county  drain  commissioner  as  aforesaid,  publicly 
expressed  in  court  on  the  hearing  had  on  said  application, 

that ,  the day  of , 

/ ,  at o'clock  in  the  forenoon  of  that  day  be 

and  the  same  is  hereby  appointed  as  the  time  and 


as  the  place  where  said  special  commissioners  shall  meet 
the  said  drain  commissioner  and  other  parties  in  interest. 


§  200  THE  LAW  OF  TAXATION  384 

to  consider  of  the  matter  and  things  with  respect  to  which 
the  said  special  commissioners  were  appointed. 

And  I  further  certify  that  at  the  time  of  the  issue  of  the 
above  order,  public  announcement  was  made  by  me  of  the 
appointment  of  three  special  commissioners  therein  named 
and  of  the  time  and  place  of  their  first  meeting. 


Judge  of  Probate. 

§269.     Oath  of  Special  Commissioners. 

When  proceedings  are  instituted  to  establish  a  drain,  if 
private  property  is  to  be  taken  therefor,  it  cannot  be  done 
until  the  commissioners  appointed  by  a  court  of  record,  or 
the  jury,  if  one  has  been  demanded,  has,  under  sanction  of 
their  oath,  found  that  it  is  necessary  to  the  public  health 
that  such  drain  shall  be  constructed  as  described  in  the 
determination  of  the  drain  commissioner.  This  safeguard, 
if  honestly  observed  by  those  in  whom  the  trust  is  reposed, 
will  be  sufficient  to  protect  the  individual  owner  and  the 
community  to  be  taxed,  from  a  perversion  of  the  law  to 
merely  private  purposes42.  In  carrying  out  laws  for  con- 
demning private  property  to  public  uses,  it  has  always  been 
held  necessary  to  strictly  observe  every  material  requirement ; 
and  courts  have  been  equally  constant  in  insisting  that  the 
proceedings  should  affirmatively  show  upon  their  face  a 
substantial  adherence  to  the  course  prescribed  by  the  legis- 
lature43. Unless  the  dimensions  and  route  of  the  drain  are 
specified  in  the  oath,  there  is  no  proper  proof  of  record 
that  their  oath  applied  to  a  projected  drain  of  any  specific 
character  and  predetermined  location,  as  it  is  necessary 

42.     Kinnie    v.    Bare,    68    Mich.          43.     Kroop  v.  Forman,  31  Mich. 
625,  629.  144. 


385          PROCEEDINGS  IN  PROBATE  COURT         > 

should  appear44.  Either  commisioners  or  jury  must  take 
the  constitutional  oath,  which  must  be  co-extensive  with 
their  duties.  A  recital  of  an  oath  in  their  report  is  in  reality 
surplusage  and  of  no  effect.  The  law  implies  that  they  are 
to  be  first  sworn  to  qualify  them  to  report  at  all ;  and  it  does 
not  intend  to  have  recourse  to  their  report  for  proof  of 
their  oath.  Until  they  are  sworn  in,  they  are  not  in  a 
situation  to  report,  much  less  in  a  situation  to  certify 
authoritatively  that  they  have  been  sworn45. 


I  ss. 


Form  for  Oath  of  Special  Commissioners. 

State  of  Michigan. 
County  of  ....... 

We,  each  of  us,  do  solemnly  sircar  that  we  are  residents 

and  freeholders  of  the  said  county  of ,  and 

that  we  will  faithfully  discharge  the  duties  of  special  com- 
missioners in  the  matter  of  the  laying  out  and  establishing 

of  the Drain,  in  which  we  are  called  to  act, 

described  as  set  forth  in  Exhibit  A  hereto  attached  and 
made  a  part  of  this  oath,  and  that  w'e  trill  well  ami  truly 
determine  the  necessity  of  laying  out  and  establishing  the 
said  drain  for  the  good  of  the  public  health,  and  of  the 
taking  of  private  property  for  the  use  and  benefit  of  the 
public  for  the  purpose  thereof  and  the  just  compensation  for 
each  particular  tract  to  be  paid  therefor,  which  tracts  of 
land  are  set  forth  in  Ex.  B.  hereto  attached. 


Special  Com missioncrs. 

44.  Chapman  v.   Drain  Com'r.,      47  Mich.  154,  155 ;  Powers  appeal 
49  Mich.  305.  29  Mich.  504,  510. 

45.  Bowler    v.     Drain     Co"n'r., 
(25) 


§§270,271  THE  LAW  OF  TAXATION  386 

Sworn  to  and  subscribed  before  me  this day 

of , 

> 

County  Drain  Commissioner  of County,  Mich. 

§270.     Adjournments  of  Special  Commissioners. 

In  the  case  of  adjournments  or  intervals  of  meetings, 
some  method  of  information  thereof  must  be  found,  be- 
cause the  presence  of  the  party  opposing  the  condemnation 
is  assumed  throughout  the  proceedings.  The  parties  in 
interest  are  entitled  to'  full  notice  of  all  adjournments40. 

§271.     Return  of  Special  Commissioners. 

The  function  of  these  commissioners  is  one  of  high  im- 
port. They  are  expressly  provided  for  in  the  constitution. 
They  are  required  to  determine  upon  oath  the  necessity  for 
taking  private  property  for  the  public  good,  and  to  ascer- 
tain and  fix  the  amount  of  compensation  or  damages;  and 
this  implies  that  they  shall  know  what  the  conditions  are 
on  which  their  judgment  shall  be  exercised.  The  result 
may  depend  wholly  upon  the  dimensions,  and  it  cannot  be 
intended  that  the  legislature  designed  to  leave  commission- 
ers without  the  means  to  enable  them  to  discharge  their 
high  duty  intelligently.  They  should  not  only  have  before 
them  the  entire  subject  of  their  inquisition,  in  shape  so 
distinct  as  to  warrant  an  intelligible  decision,  but  the  pro- 
ceedings should  show  that  such  was  the  case.  Their  judg- 
ment ought  to  declare  upon  its  face  what  lands  it  devoted 
to  the  public  good,  and  what  sort  of  ditch  in  its  dimensions 
they  approved:  and  all  of  this  should  appear  in  the  record47. 

46.  C.    L.    §4326;    Strachan    v.  record   nowhere   gave  the  dimen- 
Drain  Com'r.,  39  Mich.  168,  170.  sions  of  the  drain,  or  more  than 

47.  C.  L.  §4328.     In  Milton  v.  a   line.     Similarly   in    Mathias   v. 
Drain    Com'r.,   40   Mich.   229,   the  Carson,  49  Mich.  465. 


387          PROCEEDINGS  IN  PROBATE  COURT 

Their  return  should  show  that  they  had  before  them  the 
papers  required  by  statute  to  be  before  them48.  The  land 
proposed  to  be  taken  should  be  identified  both  in  the  order 
of  the  probate  court  appointing  the  commissioners,  and  in 
their  return40.  The  value  of  each  parcel  taken  must  be 
found  separately50. 

Form  for  Return  of  Special  Commissioners. 

Return  of  Special  Commissioners  as  to  the  necessity  of 
laying  out  and  establishing  of Drain. 

//Y,  the  undersigned,  having  been  appointed  by  the  Pro- 
bate Court,  County  of ,  State  of  Michigan, 

as  special  commissioners  to  ascertain  and  determine  the 

necessity  of  laying  out  and  establishing  the 

Drain,  situate  in  the  townships  of County. 

Michigan,  and  further  described  as  set  forth  in  Exhibit  A 
hereto  attached,  and  to  determine  the  necessity  for  the  tak- 
ing of  private  property  for  the  use  and  benefit  of  the  public 
for  the  purpose  thereof,  and  to  appraise  and  determine  the 
compensation  to  be  made  to  the  several  owners  or  parties 
interested  in  the  real  estate  proposed  to  be  taken  for  the 
right  of  uvy  of  said  drain,  and  damages  for  each  particu- 
lar tract  taken,  do  hereby  make  our  returns  to , 

County  Drain  Commissioner  of  the  said  County  of 

of  our  hearing  and  determination  in  the  premises  as  fol- 
lows: 

First,  having  been  properly  notified  of  our  appointment  as 
such  commissioners  and  liaising  been  properly  sti'orn  to  dis- 


48.  Bennett  v.  Olney,  56  Mich.      4:>  Mich.  105. 

«34.  637.  50.    Chicago,  etc.,  Ry.,  v.  Mans- 

49.  Willcheck  v.  Drain  Com'r.,      field.  29  Mich.  418. 


§  271  THE  LAW  OF  TAXATION  388 

charge  our  duties  as  such  commissioners,  which  oath  sub- 
scribed by  us  and  sivorn  to,  is  hereto  attached; 

Second,  on  the day  of ,  at  the 

at o'clock  in  the  forenoon  of  that 

day,  that  being  the  time  and  place  designated  in  the  order 
appointing  us  as  such  commissioners  to  meet,  we  met  with 
yourself  as  such  drain  commissioner  and  the  other  parties 
in  interest,  then  and  there  present  and  proceeded  to  view  the 
lands  and  premises  described  in  the  survey  as  to  be  affected 
by  said  drain,  and  to  hear  the  proofs  and  allegations  of  the 
several  parties  in  interest  relating  to  the  proposed  laying 
out  and  establishing  of  the  said  drain; 

That  at  such  view  and  hearing  there  were  produced  by 
yourself  as  such  drain  commissioner  the  original  application 
tor  the  laying  out  and  establishing  of  said  drain,  minutes 
of  your  action  thereon,  so  far  as  said  minutes  of  sur- 
vey on  said  drain  signed  by  the  surveyor  thereof,  the  first 
order  of  determination  thereon,  release  of  right  of  way 
so  far  as  obtained,  map  and  profile  of  said  drain;  also 
certified  copies  of  the  order  of  the  Probate  Court  of  said 
county  appointing  us  as  such  special  commissioners  and  of 
the  application  of  the  said  drain  commissioner  to  said  court 
for  the  appointment  of  such  commissioner  as  aforesaid,  and 
of  the  citation  issued  thereon  together  with  the  proofs  of 
service  annexed  thereto,  which  map,  profile  and  certified 
copies  as  aforesaid  are  hereby  made  a  part  of  this  return. 

Fourth,  That  upon  such  view  and  hearing  after  hearing 
the  proofs  and  allegations  of  the  several  parties  in  interest 
li'ho  were  there  to  present  the  same,  ive  ascertained  and 
determined,  as  such  special  commissioners  as  aforesaid,  and 
do  determine  that  the  laying  out  and  establishing  of  the 
said  drain  as  described  in  said  Exhibit  A,  is  necessary  for 


889          PROCEEDINGS  IN  PROBATE  COt'KT 

///r  good  of  the  public  health  ami  we  do  further  determine 
that  it  is. necessary  to  take  private  property  therefor,  here- 
inafter more  particularly  described,  for  the  use  and  benefit 
of  the  public  for  the  purpose  of  said  drain. 

Fifth,  We  the  said  special  commissioners  as  aforesaid,  did 
also  ascertain  and  hereby  do  determine  the  just  compensa- 
tion to  be  made  and  allowed  in  each  case  for  the  real  estate 
taken  for  the  right  of  way  of  said  drain,  and  for  the  dam- 
ages by  reason  thereof,  to  each  party  as  set  forth  in  Exhibit 
B  hereto  attached  (in  Exhibit  B  set  forth  a  description  of 
the  land  taken  from  each  parcel  or  tract  of  land,  for  the 
drain,  together  with  the  damages  awarded  therefor.  Dam- 
ages should  be  awarded  to  the  wife  for  her  dower  interest) 
and  we  do  further  certify  and  return  that  our  determina- 
tion as  to  the  necessity  for  the  taking  and  using  said  private 
property  for  t]\e  use  and  benefit  of  the  public  for  the  pur- 
pose of  said  drain,  and  our  appraisement  and  determination 
of  the  damages  and  compensation  justly  to  be  made  to  the 
owners  or  persons  interested  in  each  particular  tract  of  land 
taken  for  the  purpose  aforesaid,  were  arrived  at  in  accord- 
ance with  our  best  judgment  and  ability  and  without  favor 
or  partiality  to  anyone;  also  that  the  several  compensations 
and  awards  as  above  returned,  have  been  made  and  deter- 
mined by  us  without  reference  to  any  benefit  that  may 
accrue  to  the  said  several  tracts  of  parcels  of  land  in  con- 
sequence of  the  laying  out  and  establishing  of  said  drain. 
We  further  certify  and  return  that  the  total  amount  of  dam- 
ages and  compensation  awarded  by  us  is 

dollars; 

Given  under  our  hands  this day  of 


Special  Commissioners. 


§  272  THE  LAW  OF  TAXATION        .  390 

(A  complete  copy  of  the  minutes  of  survey  marked  Ex- 
hibit A  should  be  attached  to  the  oath  and  this' oath  at- 
tached to  this  return  of  the  special  commissioners  oath  to 
be  signed  by  officer  selecting  jury.) 

f  272.     Disagreement  of  Commissioners. 

Where  special  commissioners  make  a  unanimous  return 
simply  that  they  are  unable  to  agree,  the  drain  commissioner 
is  authorized  to  petition  for  the  appointment  of  new  special 
commissioners51.  A  majority  of  the  special  commissioners, 
only,  is  necessary  to  a  determination.  The  word  "com- 
missioners", as  used  in  the  constitution,  means  commis- 
sioners clothed  with  such  powers  as  prior  to  the  adoption 
of  the  constitution  they  had  been  clothed  with, — that  is, 
the  right  to  decide  all  questions  by  a  majority  vote  and 
H.  S.  §2,  par.  3  (R.  S.  1846,  Chap.  I,  §3  sub.  3)  car- 
ried into  effect  the  rule  by  which  such  decisions  were 
reached  by  a  majority  of  the  commissioners.  This  section 
antedated  our  present  constitution  and  provides,  "All  words 
purporting  to  give  a  joint  authority  to  three  or  more  pub- 
lic officers  or  other  persons,  shall  be  construed  as  giving 
such  authority  to  a  majority  of  such  officers  or  other  per- 
sons, unless  it  shall  be  otherwise  expressly  declared  in  the 
law  giving  the  authority.  When  a  tribunal  is  invested 
with  powers  to  be  exercised  in  the  public  interests,  it  is 
essential  that  all  of  the  members  should  act  upon  the  mat- 
ter in  hand;  but  a  majority  may  decide."  The  reason  for 
the  rule  is  that  matters  of  public  concern  should  not  be 
delayed,  perhaps  indefinitely,  by  insisting  upon  unanimity 
in  council.  This  rule  has  been  applied  on  principle  or  by 

51.  Constitution  of  1850,  Art.  of  1908,  Art.  XIII,  §2.  Parker 
XVIII,  §2,  Beecher's  Constitution  v.  Lincoln,  114  Mich.  306. 


I'M  PROCEEDINGS  IN  PROBATE  COURT 

statutory  direction,  both  to  boards  of  commissioners,  by 
whom  the  necessity  of  the  work  is  to  be  determined,  and 
t«>  those  charged  with  the  duty  of  assessing  compensation. 
But,  unless  the  statute  plainly  permits,  the  condition  that 
all  members  of  the  tribunal  must  participate  will  not  be 
relaxed52. 

$273.     Venire  for  Jury. 

Tiuler  the  drain  law  of  1871,  the  first  description  of  the 
land  to  be  taken  for  the  drain  appeared  in  the  venire  for 
the  jury.  Where  the  venire  described  only  the  line  of  the 
drain,  without  giving  the  dimensions,  or  specifying  the 
width  to  be  taken,  it  was  held  fatal  to  the  proceedings53. 
The  description  should  be  as  definite  at  every  stage  of  the 
proceedings  as  would  be  necessary  -for  a  deed54.  Where 
a  jury  is  called,  but  the  extension  of  the  drain  over  con- 
testant's land  is  abandoned,  such  person  cannot  object  to 
defects  in  the  proceedings  of  the  jury55. 

Form  for  Sheriff's  Oath. 

At  a  session  of  tfte  Probate  Court  held  at  the  Probate 

Office  in  the  city  of ,  in  the  county  of , 

on  the day  of ;  present,  Honorable 

,. .,  Judge  of  Probate. 

In  the  matter  of  the  laying  out  and  establishing  of  the 
Drain. 

I,  Sheriff  of  said  County,  do  solemnly  stsear  that  in 
selecting  persons  who  act  as  jurymen  to  ascertain  and  de- 

52.  Scrrell    v.    Patterson.    107      144. 

Mich.    234,    237;     In     re    Church  :.4.     Mathias      v.      Carson,     49 

Street,  49  Barb.  4»5 ;  In  re  Broad-  Mich.    465;    Chapman    v.    Drain 

way,     63     Barb.     472;     Astor     v.  Com'r..  49  Mich.  305. 

Mayor,  etc.,  62  N.  Y.  580.  :,:,.     Mayhee    v.    Drain    Com'r.. 

53.  Kroop  v.  Forman,  31  Mich.  4.r>  Mich.  568. 


§  273  THE  LAW  OF  TAXATION  392 

/ ermine  t]\c  necessity  for  the  laying  out  and  establishing 
said  drain  that  I  will  select  such  persons,  freeholders  of 
the  said  county  of ,  and  such  persons,  free- 
holders of  the  said  county  of ,  and  dis- 
interested persons,  according  to  my  best  judgment  with- 
out favor  or  partiality  to  either  party,  and  that  I  will  do 
so  in  accordance  zvith  the  statutes  in  such  case  made  and 
provided. 


Sworn  to  and  subscribed  before  me  this day 

of 


Judge  of  Probate. 

Form  for  Summons. 

State  of  Michigan.     ) 
County  of ) 

At  a  session  of  the  Probate  Court  for  the  said  County 

of ,  held  at  the  Probate  office  in  the  city 

of on  the day  of , 

present  the  Hon '..,  Judge  of  Probate. 

To  the  Sheriff  of  said  County  greeting: 

In  the  name  of  the  people  of  the  State  of  Michigan,  you 
are  hereby  required  to  summons  (insert  the  twelve  names 
selected)  to  appear  before  the  Probate  Court  of  said  county 

at  its  office  in  the  city  of in  said  county  on 

the day  of  . . ,  at o'clock 

in  the  forenoon  of  that  day,  to  make  a  jury  to  ascertain  and 
determine  the  necessity  for  the  laying  out  and  establishing 

of  the Drain,  which  drain  is  described 

as  set  forth  in  Exhibit  A  hereto  attached,  (set  out  a  com- 


:!!•:;  PROCEEDINGS  IX  PROBATE  COURT  §274 

pletc  copy  of  the  minutes  of  snn'ey  and  mark  the  same 
Exhibit  A  mid  attach  to  the  foregoing  also  set  off  and  mark 
Exhibit  B  a  complete  description  of  each  parcel  of  lami 
proposed  to  be  taken)  such  jury  is  to  determine  the  neces- 
sity for  taking  the  private  property  as  set  forth  in  Exhibit 
B  hereto  attached  for  the  use  and  benefit  of  tlie  public  for 
the  purpose  of  said  drain,  as  ivell  as  to  determine  the 
necessity  of  said  drain  for  the  good  of  the  public  health. 


Judge  of  Probate. 


£274.     Return  of  Jury. 


The  section  of  the  law  referring  to  commissioners  in 
railroad  cases  seems  to  contemplate  that  a  majority  of  them 
may  determine  the  compensation.  If  the  term  "jury"  as 
used  in  the  constitution  authorizes  anything  less  than  a 
unanimous  verdict,  it  means  what  it  does  not  signify  in 
any  other  part  of  the  constitution.  Such  a  body  of  men 
are  more  than  appraisers  and  were  known  at  common  law 
as  a  jury  of  inquest,  and  was  so  intended  by  our  constitu- 
tion. Their  verdict  must  be  unanimous56.  The  jury  of  in- 
quest under  our  constitution  is  the  common  law  jury. 
Hence  it  follows  that  their  verdict  cannot  be  impeached 
by  affidavits  of  themselves  that  they  arrived  at  their  result 
in  any  improper  manner,  as  by  average57.  Unlike  the  prac- 
tice in  railroad  cases,  the  probate  court  has  no  power  to 
set  aside  the  report  of  the  jury  which  finds  that  the  con- 
struction of  a  drain  is  unnecessary58.  It  is  not.  per  se, 

56.    C.  L.  54328.     Chicago,  etc.,  57.     Wixom  v.  Bixby,  127  Mich 

Ry.    v.    Sanford.    23    Mich.    41R.  479,  486. 

Kress  v.   Probate  Judge,  92  5S.     Palmer     v.      Willett.      I  • 

Midi.  372;  Wixom  v.  Bixby.  127  Mich.  86. 
Mich.  479,  486. 


§§  275,  276  THE  LAW  OF  TAXATION  394 

a  mistrial  for  the  commissioner  to  enter  the  jury  room 
alone  and  furnish  measurements,  tax  rolls,  etc.,  when  he 
does  not  assist  in  making  the  awards59.  Giving  a  jury 
their  dinner  and  furnishing  them  cigars,  by  one  interested 
in  the  proceedings,  is  ground  for  setting  aside  their  ver- 
dict60. 

§275.     Disagreement  of  Jury. 

When  a  jury  is  unable  to  agree,  it  is  the  duty  of  the 
probate  judge,  on  the  request  of  a  person  in  interest,  to 
impanel  a  new  jury  in  the  same  proceedings.  It  is  ap- 
parent from  the  provisions  of  the  statute  that  the  proceed- 
ings were  to  be  ended  only  when  the  jury  or  commissioners 
should  decide  the  drain  to  be  unnecessary,  and  not  upon 
a  disagreement  of  the  jury.  There  is  no  provision  in  the 
statute  as  to  what  proceedings  shall  be  had  in  a  case  of  a 
disagreement  of  the  jury;  but  it  must  have  been  the  intent 
of  the  legislature  that  the  proceedings  should  continue  until 
an  agreement  was  reached61. 

§276.     Confirmation  of  Report  of  Jury. 

The  practice  follows  that  used  in  condemning  right  of 
way  for  railroad  purposes.  However,  the  court,  in  drain 
proceedings,  had  no  power  to  allow  costs  to  the  objectors62. 

Form  for  Jury  to  Sign. 

State  of  Michigan. 
County  of 

At  a  session  of  the  Probate  Court  for  the  County  of 
at  the  Probate  Office  in  the  city  of 

59.  Patterson     v.     Mead,     138  61.     Kress  v.  Probate  Judge,  92 
Mich.  659.  Mich.   372. 

60.  Harrington       v.       Prolate  62.     Patterson     v.     Mead,     148 
Judge,  153  Mich.  660.  Mich.  659. 


395          PROCEEDINGS  IN  PROBATE  COURT        §  276 

,  on  the  day  of , 

present  the  Hon ,  Judge  of  Probate. 

In  the  mutter  of  determining  the  necessity  of  laying  out 
and  establishing  the Drain. 

We,  and  each  of  us,  do  solemnly  swear  that  we  are  resi- 

c.ent  freeholders  of  the  county  of  ,  but 

not  of  the  township  traversed  or  affected  by  said  drain,  to- 

TV//; . ;  and  that  we  trill  in  the  matter  of 

determining  the  necessity  of  laying  out  ami  establishing 
said  drain,  which  drain  is  described  as  set  forth  in  Exhibit 
.-I  hereto  attached  and  made  a  part  of  this  oath,  that  we 
trill  justly  and  impartially  ascertain  and  determine  the 
necessity  therefor  for  the  good  of  the  public  health  and  the 
necessity  for  taking  and  using  private  property  for  the  use 
and  benefit  of  the  public  for  the  purpose  thereof,  and  the 
just  compensation  for  each  particular  piece  if  we  shall  deem 
/'  necessary  that  the  same  be  taken;  and  that  we  trill  arrive 
at  such  damages  without  any  reference  to  the  benefits  to  be 
derived  by  any  parcel  of  land.  Further,  that  we  trill  act  in 
this  matter  according  to  our  best  judgment  and  ability  tvith- 
out  favor  or  partiality  to  anyone,  and  make  our  report  ac- 
cordingly. 

(This  is  sworn  to  and  signed  before  the  Judge  of  Pro- 
bate.) 

Form  for  Order  Confirming  Report  of  Jury. 

State  of  Michigan.     } 
County  of j 

At  a  session  of  the  Probate  Court  for  the  County  of 

,  holding  at  the  Probate  Office,  city  of 

on  the day  of , 

present,  Hon ,  Judge  of  Probate. 


§  277  THE  LAW  OF  TAXATION  396 

In  the  matter  of  the  laying  out  and  establishing  of  the 
Drain. 

On  reading  and  filing  the  report  of  the  jury  heretofore 
appointed  by  this  Court  to  ascertain  and  determine  the  neces- 
sity of  laying  out  and  establishing  said  drain  through  certain 

lands  in  the  township  of ,  said  county,  ichicli 

said  drain  is  described  as  set  forth  in  Exhibit  A  hereto  at- 
tached, and  for  the  taking  of  the  private  property  for  the 
use  and  benefit  of  the  public  for  the  purpose  thereof  as  set 
forth  in  Exhibit  B  hereto  attached,  and  for  the  just  compen- 
sation for  each  particular  tract  to  be  made  therefor;  and  it 
appearing  to  this  court  tfiat  said  report  is  just  and  impartial 
and  is  without  favor  to  anyone,  and  in  accordance  with  the 
statute,  therefore  it  is  ordered  that  said  report  be  and  the 
same  is  hereby  confirmed. 


Judge  of  Probate. 

§277.     Delay  in  Proceedings. 

When  the  statute  does  not  fix  any  specified  time  in  which 
the  commissioner  must  proceed,  much  is  left  to  his  discre- 
tion and  convenience.  Where  a  petition  was  filed  in  Aug., 
1869,  and  no  action  was  had  until  May,  1871,  it  was  held 
not  an  unreasonable  delay63.  A  year's  delay,  in  making 
a  survey,  if  unexplained,  may  be  unreasonable64.  Where 
a  petition  was  filed  in  October,  1891,  the  survey  was  made 
in  November,  1892,  the  first  order  in  March,  1893,  and  the 
application  to  the  probate  court  was  made  in  September, 
1893,  the  proceedings  were  held  good65.  The  ninety  days 

63.  Davidson  v.  Otis,  24  Mich.  Judge,        McGrath's       Mandamus 
23.  cases,  N.  614. 

64.  Wright    v.    Drain    Com'r.,  65.    Moore    v.     Mclntyre,     110 
44  Mich.  557;   Schenk  v.  Probate  Mich.  237. 


PROCEEDINGS  IN  PROBATE  COURT         ?  -  7  "i 

time  for  making  the  first  order  of  determination  does  not 
begin  to  run  until  the  minutes  of  survey  are  delivered  to 
the  commissioner  by  the  surveyor;  and  this  provision  is 
only  directory,  and  not  jurisdictional60. 

c=278.     De  Novo  Proceedings. 

If  a  mistake  is  made  in  the  appointment  of  special  com- 
missioners so  that  such  appointment  is  void,  the  probate 
judge  should  vacate  such  order  and  issue  a  new  citation, 
or  begin  dc  novo97.  Where  the  jury  disagrees,  the  pro- 
bate court  should  at  once  impanel  another  in  the  same 
proceedings,  upon  the  request  of  a  party  in  interest68.  Thus, 
where  the  commissioners  return  that  they  cannot  agree 
without  giving  any  reasons  or  making  any  finding  con- 
cerning the  proposed  drain,  the  drain  commissioner  may 
petition  for  the  appointment  of  three  others69.  Where  a 
right  of  way  was  incomplete,  the  circuit  court  ordered  the 
proceedings  stayed  until  special  commissioners  could  pass 
upon  this  particular  parcel,  without  passing  upon  the  neces- 
sity of  taking  all  of  the  property  through  which  the  drain 
passed70.  The  provision  of  the  statute  in  this  regard  is 
equitable  and  should  be  sustained.  It  is  not  a  provision 
to  declare  valid  and  effective  proceedings  already  had.  If 
it  were,  the  power  of  the  legislature  would  be  limited  to 
dispensing  with  non-essentials.  Jurisdictional  essentials 
could  not  be  dispensed  with.  The  rule  is  that  the  legisla- 
ture may  validate  acts  which  it  might  previously  have 


66.  Flynn    Twp.    v.    Woolman,  69.     Parker     v.     Lincoln,     114 
1.i:i   Mich.   508.  Mich.  306,  309. 

67.  C.  L.   584366.  4369;   In  re  70.    Brady     v.     Hayward,     114 
Probate      Court      C.     L.      §4325.  Mich.  326.  334;  Gillison  v.  Cress- 
Kinnie  v.  Bare.  68  Mich.  625,  634.  man.  100  Mich.  591,  596;  Hackctt 

68.  Kress    v.    Probate    Judge,  v.  Brown,  128  Mich.  141,  143. 
92   Mich.  372. 


§  278  THE  LAW  OF  TAXATION  398 

authorized,  but  can  go  no  further.  As  the  legislature  could 
not  provide  in  advance  that  the  steps  to  acquire  jurisdic- 
tion might  be  omitted,  so  it  cannot,  by  direct  enactment 
after  failure  to  comply  with  adjudicated  prerequisites,  de- 
clare proceedings  valid  notwithstanding.  But  this  is  not 
an  attempt  to  validate  these  proceedings  without  giving  the 
parties  concerned  an  opportunity  to  be  heard.  Certain 
work  had  been  done  in  advance  of  a  valid  determination 
of  necessity,  and  in  advance  of  a  valid  condemnation.  It 
is  none  the  less  equitable  that  those  benefited  by  this  work 
should  pay  for  it,  nor  is  it  any  the  less  proper  that  the 
question  of  the  necessity  for  taking  property  for  a  public 
use  be  determined71.  C.  L.  §4366,  Act  272  of  Public  Acts 
of  1899,  providing  for  the  completion  of  drains  begun  but 
not  completed  because  of  defects  in  the  proceedings,  au- 
thorizes the  drain  commissioner  to  spread  a  tax  de  noro, 
where  his  first  tax  was  set  aside.  It  will  not  vitiate  the 
proceedings,  even  though  it  was  not  completed72.  A  dc 
novo  proceeding  is  based  upon  the  statute,  and  must  con- 
form thereto  both  as  to  the  circumstances  under  which  it 
is  resorted  to,  and  the  procedure.  It  is  competent  for  the 
legislature  to  provide  for  the  completion  of  a  partly  fin- 
ished drain,  and  point  out  a  way  for  the  correction  of 
errors  so  as  to  make  it  possible  to  complete  it,  although 
the  expense  is  increased  thereby73.  One  application  to  the 
probate  court  may  be  quashed  and  another  one  filed,  based 
upon  the  same  prior  proceedings74.  An  assessment,  made 
without  notice,  may  be  set  aside  and  a  new  one  ordered 

71.  Hauser    v.     Burbank,     117      Mich.  525,  527. 

Mich.  463,  465.  74.    Tinsman  v.  Probate  Judge, 

72.  Pollock  v.     Sowers,  137      McGrath's   Mandamus   cases,   No. 
Mich.  368.  610. 

73.  Anketell  v.    Hay  ward,  119 


PROCEEDINGS  IX  PROBATE  COURT 


made76.  A  township  board,  which  acts  improperly  upon 
an  appeal  to  it  to  review  a  drain  assessment,  will  be  com- 
pelled to  reconvene  and  review  the  assessment  properly78. 
Where  one  party  did  not  release,  proceedings  will  \ye  re- 
manded back  to  that  point77.  The  probate  judge,  how- 
ever, cannot  entertain  a  motion  to  set  aside  the  finding  of 
a  jury  that  the  drain  is  not  necessary.  This  is  different 
from  refusing  confirmation78. 


75.  Cook   v.   Covert,   71    Mich. 
249,  253. 

76.  Thomas    v.    Walker    Twp. 
Board.  110  Mich.  597.  (WH. 


77.  Sturm  v.   Kelly,   120   Mich. 
685. 

78.  Palmer     v.      Willett.      105 
Mich.  86. 


CHAPTER  XVII. 
LEVY  OF  THE  TAX,  AND  ITS  INCIDENTS. 


§279.     Final  Order. 

Form  of  Final  Order  for  Determination. 
§280.    Notice  of  Sale  and  Assessment. 

Form  of  Notice  of  Sale. 
§281.     Sale  of  Drain. 
§282.    Apportionment  of  Benefits. 

Form  for  Apportionment  of  Benefits. 
§283.     Description  of  Lands  Assessed. 
§284.     Appeal  from  Assessment. 

Form  for  Claim  of  Appeal. 

Form  for  Order  of  Hearing  on  Claim  of  Appeal. 

Form  for  Appointing  of  Board  of  Review. 

Form  for  Oath  of  Board  of  Review. 

Form  for  Report  of  Board  of  Review. 
§285.     Costs  and  expenses. 
§286.     Board  of  Supervisors. 
§287.     The  Supervisor. 
§288.     Construction  of  Drain. 
§289.     Tax  Roll. 

Form  for  Certificate  of  Drain  Tax  Roll. 
§290.     Sale  of  Lands  for  Taxes. 
§291.     Drain  Funds  and  Orders. 
§292.    Liability  for  Tax. 
§293.     Liability  of  Townships. 
§294.     Liability  of  Petitioners. 
§294a.  Interest. 


£279.     Final  Order. 

An  unsigned  final  order  is  a  nullity.  They  are  not  such 
orders  as  are  contemplated  by  the  provision  which  requires 
notice  within  ten  days  after  the  making  in  order  to  bring 
certiorari.  Even  if  the  tax  payer  was  fully  apprised  of 
the  filing  of  such  an  order  he  would  not  be  bound  to  as- 
sume that  any  attempt  would  be  made  to  proceed  under  it1. 

1.     C.  L.  4340.    Loree  v.  Smith,  Act   254,   Laws   of   1897,   Chap. 

100  Mich.  252,  255.  VII,    §1,    first    provided    for    the 


401  LEVY  OF  THE  TAX  ji  •.'?  'J 

Form  for  Final  Order  of  Detremination. 

Final  Order  of  Determination  of  

drain. 

ll'hcrcas.  I,   ,  as  county  drain 

commissioner  of ,  county,  Michigan, 

did  on  the day  of make 

(/;;</  issue  and  order  determining  that  it  was  necessary  for 
ilic  good  of  the  public  health  that  a  certain  drain  should  be 

laid  out  and  established  in  the  township  of , 

in  said  county,  in  which  said  order  said  drain  was  designated 

as  the  drain;  and,  whereas,  since  the 

date  of  said  order  the  right  of  way  for  said  drain  and  all 
damages  on  account  thereof,  have  been  released  by  the 
sei'cral  oivners  of  land  traversed  by  said  drain,  or  the  same 
hare  been  properly  condemned  by  proceedings  in  the  pro- 
bate court  of  said  county; — 

Now  therefor,  I,  . ., ,  county  drain 

commissioner  as  aforesaid,  do  order  and  determine  that  the 
said  drain  shall  be  laid  out  and  established  in  accordance 
:«.////  the  above  described  first  order,  and  that  the  same  con- 
firm in  all  respects  thereto. 

The  several  tracts  or  parcels  of  land,  together  iwth  the 
townships  at  large,  to  be  assessed  for  benefits  in  the  con- 
struction of  said  drain  arc  as  follows,  to  wit:  (\ainc  each 
township  that  ivill  be  liable  to  an  assessment  for  benefits, 
and  describe  each  parcel  of  land  in  the  district  which  will  be 
liable  to  an  assessment  for  benefits:) 


Given  under  my  hand  this day  of 


County  Drain  Commissioner. 

filing  of  a  certified   copy  of   the      within  five  days  after  the  making 
final  order,  which  was  to  be  filed      of  the  original. 


§  280  THE  LAW  OF  TAXATION  402 

£280.     Notice  of  Sale  and  Assessment. 

This  notice  must  be  given  or  the  assessment  will  be  void2. 
But  such  notice  may  be  waived  by  the  acquiesence  of  the 
parties  interested3.  In  proceedings  to  clean  out  a  drain, 
personal  service  on  the  parties  interested  is  not  required4. 
It  is  not  sufficient  notice  to  a  wife  to  leave  a  notice  with 
her  to  give  to  her  husband,  or  to  one  tenant  in  common 
to  leave  with  his  co-tenant.  It  will  not  be  sufficient  where 
husband  and  wife  own  by  entireties.  A  failure  to  serve  on 
one  land  owner  cannot  be  taken  advantage  of  by  another5. 

The  property  of  a  citizen  cannot  be  condemned  or  taken 
from  him  without  notice  of  some  sort,  either  actual  or 
constructive,  of  the  proceeding  in  which  it  is  to  be  done; 
and  this  is  true  in  making  and  levying  assessments  of  taxes, 
as  well  as  in  any  other  proceedings6.  The  drain  law  of 
1893  does  not  require  personal  service  of  notice  of  the  sale 
and  assessment  on  proceedings  had  to  clean  out  a  drain, 
though  on  proceedings  to  deepen  and  widen,  or  to  estab- 
lish, it  must  be  given7. 

Form  of  Notice  of  Sale. 

Notice  of  letting  of drain. 

Notice  is  hereby  given  that  I,   , 

county   drain   commissioner   of    

county,  Michigan,  will  on  the day  of 

,  that (describe 


2.  See  §348r  post ;  C.  L.  §4340 ;  Mich.  529. 

Pieotter  v.  Whaley,  80  Mich.  257  5.    Hinckley     v.     Bishop,     152 

259;    Cook    v.    Covert,    71    Mich.  Mich.    256,    non-ruling;    Rodiger 

249;   Bennett  v.   Olney,   56  Mich.  v.  Drain  Com'r.,  40  Mich.  745. 

634 ;   Burnett  v.   Scully,   56  Mich.  6.     C.  L.  §4340 ;  Cook  v.  Covert, 

374.  71     Mich     249.    253;    Pieotter    v. 

3.  Gillett    v.    McLaughlin,    69  Whaley.  80  Mich.  257,  259. 
Mich.  547.  7.     Lanning     v.      Palmer,      117 

4.  Lanning     v.      Palmer,      117  Mich.  529,  531. 


403  LEVY  OF  THE  TAX 

accurately  the  place)  in  the  township  of 

in  said  comity,  at  p  o'clock  in  the  forenoon  of  that  day. 

proceed  to  receive  bids  for  the  construction  of  the 

drain,  situated  in  the  townships  of 

MI  said  county,  and  described  as  follows,  to  wit  ;  ( describe 
accurately  from  the  survey,  commencement,  course,  distance 
and  terminus  of  the  drain,  ivith  its  specifications  for  the 
width  of  bottom,  slope  of  bank,  and  width  of  right  of  way 
of  each  side  of  the  center  line  of  drain) ;  the  above  described 
route  is  center  line  of  said  drain  and  follows  the  channel 
thereof. 

Said  fob  will  be  let  by  sections.  The  section  at  the  outlet 
of  the  drain  will  be  let  first  and  the  remaining  sections  in 
their  order,  up  stream,  in  accordance  with  diagram  now  on 
file  with  the  other  papers  pertaining  to  said  drain,  in  m\ 
office,  to  which  reference  may  be  had  by  all  parties  interested 
und  bids  will  be  made  and  received  accordingly. 

Contracts  unll  be  made  zrith  the  loivest  responsible  bidder 
&ivcn  adequate  security  for  the  performance  of  the  work 
in  a  sum  then  and  there  to  be  fi.ved  by  me,  reserving  to 
myself  the  right  to  reject  any  and  all  bids.  The  date  of  the 
completion  of  such  contract  and  the  terms  of  payment  there- 
of shall  be  announced  at  time  and  place  of  letting. 

Notice  is  further  hereby  given  that  at  the  time  and  place 
of  said  letting,  or  at  such  other  time  and  place  thereafter  to 
which  I,  the  county  drain  commissioner  aforesaid,  may 
adjourn  the  same,  the  assessments  for  benefits  and  the  lands 

comprised   within    the    drain,   special 

assessment  district,  the  apportionment  for  benefits  on 
account  thereof  will  be  announced  by  me,  and  will  be  subject 
to  revieiv  for  one  day,  from  p  o'clock  in  the  forenoon  until 
f  o'clock  in  the  afternoon. 


§  281  THE  LAW  OF  TAXATION  404 

The  fallowing  are  the  descriptions  of  the  several  tracts 
or  parcels  of  land  constituting  the  special  assessment  district 

of  said drain:  (Name  the  townships  at 

large  liable  to  be  assessed,  and  set  forth  each  description  of 
land  which  will  be  liable  to  be  assessed).  Now  therefore, 
you  (name  the  owners  by  name  as  far  as  known  and  all 
other  persons  interested  in  these  aforesaid  premises,  take 
notice  of  the  aforesaid  sale  and  assessments  of  benefits  on 
said  drain.  And  you  and  each  of  you  are  hereby  cited  to 
appear  at  the  time  and  place  of  letting  as  aforesaid  to  be 
heard  with  respect  to  such  special  assessment  and  your 
interest  in  relation  thereto,  if  you  so  desire. 

Dated  this day  of 


County  Drain  Commissioner. 

§281.     Sale  of  Drain. 

• 
The  drain  law  provides  for  dividing  the  drain  up  into 

convenient  sections  for  the  sale.  The  object  of  that  statute 
was  to  give  those  interested,  and  who  had  to  pay  for  the 
construction,  an  opportunity  to  bid.  The  statute,  however, 
is  directory  merely.  The  entire  drain  may  be  let  as  one 
section  if  it  is  advantageous  so  to  do8.  Where,  however, 
the  commissioner  advertises  that  he  will  let  a  drain  in 
sections,  he  should  follow  the  notice  and  not  let  it  as  an 
entirety.  But  the  seriousness  of  an  objection  of  this  char- 
acter is  greater  before  the  drain  is  constructed,  than  after- 
wards9. The  commissioner  is  not  bound  to  receive  bids 
and  let  jobs  to  every  person  who  bids,  regardless  of  their 

8.     C.     L.     §4342;     Carlow     v.  into   five   sections,   one   of   which 

Smith,  114  Mich.  67,  71 ;  In  Brady  was  15  miles  long, 

v.  Hayward,  114  Mich.  326,  331,  a  9.     Horn     v.      Livingston      Co. 

drain    19   miles   long  was  divided  Board,  135  Mich.  553. 


I".'.  LEVY  OF  THE  TAX 

financial  ability  to  enter  into  contract  if  the  bid  should  be 
accepted,  and  to  perform  the  work  if  the  contract  should 
be  entered  into.  The  bidder  must  be  a  responsible  bidder 
able  to  give  adequate  security.  Requiring  bidders  to  deposit 
a  certified  check  for  $1000.00  on  a  large  contract  is  not 
unreasonable.  Like  requirements  are  made  as  a  rule  by 
public  boards  whose  duty  it  is  to  let  contracts  for  public 
improvements;  and  they  are  not  in  conflict  with  either  the 
letter  or  spirit  of  the  statute10.  Where  the  commissioner 
adjourned  the  sale  for  38  days,  and  the  statutory  certiorari 
was  not  taken,  the  board  of  supervisors  cannot  refuse  to 
order  such  drain  tax  spread  because  of  such  delay11.  Where 
sewer  pipe  are  furnished,  the  letting  of  the  contract  to  fur- 
nish them  must  be  at  a  public  sale12.  Where,  however,  the 
giving  of  the  notice  is  defective,  and  every  one  remains 
quiet  until  the  contract  is  completed,  the  contractor  will  be 
entitled  to  his  pay13. 

^282.     Apportionment  of  Benefits. 

The  remoteness  of  the  land  taxed  with  respect  to  the 
drain  in  question  is  immaterial,  and  will  not  be  reviewed 
by  the  courts.  The  statute  provides  a  way  for  reviewing 
the  action  of  the  commissioner  in  this  respect,  and  this 
action  is  final14.  The  fact  that  a  drain  is  established  in- 
volves the  finding  of  the  fact  that  it  is  necessary  and  con- 
ducive to  the  public  health.  It  is  not  conceivable,  taking 
this  fact  into  consideration,  that  a  drain  is  not  worth  to  the 
townships  and  to  the  land  to  be  affected  by  it.  all  that  it 
costs.  This  being  established,  there  is  no  injustice  in 

10.  Smith  v.  Board  of  Super-      138  Mich.  544. 

visors.  115  Mich.  202.  13.    Joliet   Bridge  Co.  v.  Free- 

11.  Brady     v.     Hayward,     114      man.   149  Mich.  274. 

Midi.  326.  3'32.  14.     C.    L.   884341.   4344;    Smith 

12.  Kenyon     v.     Ionia     Board,      v.  Carlow.  114  Mich.  67.  72. 


§  282  THE  LAW  OF  TAXATION  406 

apportioning  the  cost  of  the  drain  upon  a  per  centage 
basis15.  The  county  drain  commissioner,  under  the  law  of 
1885,  was  the  sole  judge  of  the  amount  to  be  paid  by  each 
township,  and  no  appeal  laid  therefrom16.  The  assessment, 
made  upon  the  rate  per  cent  of  benefits  instead  of  in  dollars 
and  cents,  is  good17.  The  value  of  the  land  reclaimed  is 
not  the  limit  of  the  assessment  for  benefits.  The  effect 
upon  the  health  of  the  locality  may  also  be  considered; 
and  one  near  the  head  of  a  drain  may  be  benefited  more 
than  one  near  the  outlet.  The  fairness  of  the  assessment 
cannot,  moreover,  be  reviewed  in  equity  except  for  fraud18. 

"Form  for  Apportionment  of  Benefits. 

Apportionment  of  benefits  on   '. drain. 

I,  county  drain  commissioner  of  the 

county  of and  State 

of  Michigan,  have  this  day  apportioned  to  the  toivnships  of 

in  said  county  the  .  . .  per  cent  of  the  cost 

which  they,  the  said  toivnships,  each  and  severally,  and  the 
several  parcels  of  land  in  said  townships  benefited  by  said 

drain,  shall  be  and  hereby  are  made  liable  to in  the 

laying  out  and  establishing  the drain, 

b\  reasons  of  the  benefits  for  the  public  health  on  account 
thereof,  and  of  benefits  derived  by  the  said  several  parcels 
of  land;  and  the  said  several  parcels  of  land  are  hereby 
severally  made  liable  to  pay  the  proportion  of  cost  of  the 
drain  as  set  over  and  opposite  each  parcel. 

I  hereby  certify  that  all  said  assessments  for  benefits  have 
been  made  upon  the  principal  of  benefits  derived,  and  that 

15.  Brady     v.     Hayward,     114  17.     Brady     v.     Hayward,     114 
Mich.  326,  329.  Mich.  326. 

16.  Gillett    v.    McLaughlin,    69  is.     Hinckley     v.     Bishop,     152 
Mich.  547.  Mich.  256. 


407  .  LEVY  OF  THE  TAX  §  283 

public  announcement  of  the  above  apportionment  was  duly 
made  b\  me  at  the  time  and  place  of  the  letting  of  the  con- 
tract for  the  construction  of  the  said  

drain  and  before  receiving  any  bids  therefor. 

The  amount  apportioned  to  each  of  the  said  several  toum- 
*hips  at  large,  and  to  the  several  pieces  or  parcels  of  land 
I  cnefited  is  as  follows,  to  wit:  (State  the  amount  appor- 
tioned to  each  township  at  large  and  also  the  amount  appor- 
tioned to  each  parcel  of  land  within  the  district}. 

Given  under  my  hand  this day  of 


County  Drain  Commissioner. 

§283.     Description  of  Lands  Assessed. 

The  drain  law  of  1869  (Vol.  1,  p.  78),  required  the 
report  of  the  commissioner  to  the  board  of  supervisors  to 
specify  the  number  of  acres  benefited  in  each  parcel,  and 
provided  that  no  assessment  should  be  levied  on  lands  not 
actually  benefited.  This  law  contemplated  that  every 
parcel  of  land  benefited  should  be  described  in  some 
definite  manner,  and  the  number  of  acres  contained  in 
each  parcel  specified.  Where  a  government  subdivision 
which  would  contain  80  acres  was  marked  10  acres  under 
the  column  of  "acres  benefited,"  it  was  void  for  uncertainty 
as  to  where  the  10  acres  would  lie  or  was  located.  The 
proper  practice  would  have  been  to  assess  the  benefits 
against  the  entire  tract,  as  an  entirety18.  Where  land  of 
one  owner  is  grouped  with  that  of  another,  and  the  first 
owner  is  not  aware  that  his  land  is  assessed  until  it  is 
too  late  to  appeal  therefrom,  the  board  of  supervisors  will 

19.     C.     L.     §4350;     Atwell     v.      Zeluff,  26  Mich.  113.  121. 


§  284  THE  LAW  OF  TAXATION  408 

not  be  compelled  to  place  such  party's  land  upon  the  roll 
with  his  share  of  the  tax  proportionate  to  the  acreage20. 

§284.     Appeal  from  Assessment. 

Under  the  Act  of  1885,  providing  for  an  appeal  from  the 
action  of  the  drain  commissioner  to  the  township  board, 
such  board  had  no  power  to  change  the  per  cent  of  the 
drain  assessment  to  be  born  by  the  township  after  the  com- 
missioner had  fixed  it.  The  appeal  was  given  only  from 
the  per  cent  of  benefits  ordered  by  the  drain  commissioner 
to  be  assessed  against  the  lands  of  individuals  benefited, 
and  not  from  the  apportionment  made  against  the  town- 
ships21. C.  L.  §-1243,  providing  for  the  appointment  of  a 
board  of  review  by  the  probate  judge  does  not  provide  for 
giving  notice  of  such  appeal  to  the  townships  not  appealing. 
The  law  contemplates  that  the  drain  commissioner  will 
look  after  their  interests,  and  notify  them  if  necessary.  The 
appeal  brings  up  the  entire  drain  assessment,  as  the  amount 
assessed  against  one  township  cannot  be  changed  without 


20.  Tinsman      v.      Board      of  In  so  far  as  private  owners  were 
Supervisors,  90  Mich.  382.  concerned,  this  provision  remained 

21.  C.     L.     §4345;     Gillett     v.  in  effect  until  1899.     No  provision 
McLaughlin,  69  Mich.  547,  551.  was    made    for    an    appeal    by    a 

Prior    to    1885,    the    only    pro-  township    until    1897.      Act    254, 

vision     for     the     review     of     an  Chap.    V,    §10,    (Public    Acts    of 

assessment  seems  to  have  been  the  1897),   provided    that   a   township 

unconstitutional  provision   for  re-  might  apply  to  the  Probate  Court 

view   by   the   court.     Act   227   of  for   the   appointment   of   a  board 

the  Public  Acts  of  1885  (3  H.  S.  of  review  to  pass  upon  the  assess- 

§1740e3),  provided  for  a  review  of  ment   against   the   township.     Act 

individual    assessments    only,    by  272  of  Public  Acts  of  1899,  Chap, 

the  township  board  of  each  town-  V,  §2,  provides  that  any  individ- 

ship.         The      amount       assessed  ual   or   township   might   apply   to 

against  the  township  at  large,  or  the  probate  court  for  the  appoint- 

the  total  amount  assessed  in  any  ment    of    such    board    of    review, 

township,   could    rot   be   changed,  which    board    should    have    power 

Act  227,  Chap.  V.  §2.  provided  for  to  review  and  equalize  the  entire 

an       appeal       by       any       person  assessment, 
aggrieved,  to  the  township  board. 


409  LEVY  OF  THE  TAX  i 


changing  the  others.  The  township  board  is  given  the  right 
to  review  all  assessments  within  its  township;  and  this  board 
of  review  is  given  the  same  power  as  between  the  town- 
ships22. The  township  board,  on  appeal,  was  not  authorized 
to  determine  the  validity  of  the  proceedings  taken  by  the 
commissioner,  or  by  the  joint  action  of  the  commissioners 
of  two  counties,  or  to  change  the  per  cent  assessed  upon  the 
township  at  large.  Its  power  was  confined  exclusively  to 
the  correction  of  any  "error  or  inequality"  in  the  assess- 
ment made  by  the  commissioner  upon  lands  benefited.  There- 
fore, the  commissioner  from  an  adjoining  county  was  not 
a  necessary  party  to  an  appeal.  The  township  board  might 
determine  that  some  lands  were  assessed  too  high  and 
others  too  low,  and  they  might  exercise  their  judgment 
to  equalize  the  assessment.  The  commissioner  might  make 
an  error  in  the  amount,  which  the  board  could  correct,  but 
it  could  not  change  the  assessment  district  as  fixed  by  the 
commissioner,  either  to  enlarge  or  restrict  it.  Otherwise, 
it  could  wipe  out  a  district  entirely.  When  the  board  acted 
beyond  its  powers,  it  was  ordered  to  reconvene  and  properly 
review  the  assessment23. 

1  nder  Act  272  of  Public  Acts  of  1899,  any  township  is 
authorized  to  apply  to  the  probate  court  to  appoint  a  board 
of  review  upon  drain  assessments.  Under  this  provision, 
the  supervisor  is  authorized  to  make  the  application  in 
behalf  of  his  township  without  holding  an  election  thereon 
to  obtain  the  vote  of  the  people  upon  the  question24.  The 
courts  will  not  review  the  justice  or  right  of  an  assess- 
ment except  for  fraud,  but  leaves  the  complaining  party  to 


22.  Scholtz   v.    Ely,   123    Mich.      Board,  116  Mich.  597,  601. 

141.  24.     Long  v.  Probate  Judge,  130 

23.  Thomas    v.    Walker    Twp.      Mich.  338. 


§  284  THE  LAW  OF  TAXATION  410 

- 

the  statutory  tribunals-5.  Where,  however,  there  are  fatal 
defects  in  the  assessment  of  benefits,  as  made,  the  court 
may  set  it  aside  and  order  the  commissioner  to  make  an- 
other one20.  Unless  the  board  of  review  sustain  the  com- 
missioner's assessment,  the  probate  judge  has  no  authority 
to  tax  the  costs  of  the  appeal  proceeding27.  Act  /No.  272 
of  the  Public  Acts  of  1899,  increased  the  powers  of  the 
board  of  review  so  that  they  could  add  to  the  assessment 
district  fixed  by  the  commissioner.  In  making  its  report, 
the  board  is  not  bound  to  specify  parcels  of  land  upon  which 
no  change  of  assessment  was  made28.  The  board  of  review 
has  no  right  to  permit  parties  to  appear  before  it  privately 
and  give  testimony.  The  parties  in  interest  are  entitled 
to  an  open  hearing,  and  to  be  present  and  be  represented. 
The  board  cannot  omit  lands  of  an  owner  which  are  bene- 
fited, on  the  ground  that  other  lands  of  the  same  owner 
are  assessed  high  enough  for  all  the  parcels.  Where  the 
board  acts  in  such  a  manner,  the  court  will  set  aside  their 
action  for  fraud29. 

Form  for  Claim  of  Appeal. 

State  of  Michigan.     .,    ^ 
Probate  Court  for  the   >  ss. 
County  of / 

The  undersigned  shoivs  that  he  is  the  owner  of  lands 
described  as  folloivs,  to  7et>:  (Describe  lands  assessed 
accurately)  that  said  land  is  assessed  per 

25.  Smith  v.  Carlow,  114  Mich.       Mich.    591 ;    Cook    v.    Covert,    71 
67;    Clinton    Twp.    v.    Teachout,       Mich.  249. 

150  Mich.  124.     See  Equity  Juris-  27.     Huxtable     v.     Kirby,     135 

diction,  §§373,  post  and  349,  supra.  Mich.  157. 

Jones    v.    Gable,    150    Mich.    30;  28.     Murphy     v.     Dobben,     137 

Hinckley  v.  Bishop,  152  Mich.  256.  Mich.  565. 

26.  Scholtz   v.    Ely,    123    Mich.  29.     Hudlemeyer   v.    Dickenson, 
541;    Gillison    v.    Cressman,    100  143  Mich.  250. 


411  LEVY  OF  THE  TAX  §  284 

cent  of  the  cost  of  the drain  for  benefits 

in  the  construction  of  said  drain,  such  assessments  for 
benefits  tens  made  by  the  county  drain  commissioner  of  said 
county  on  the da  v  of 

That  the  undersigned himself  agreed 

by  the  said  assessment  and  apportionment  so  made  as  afore- 
said and  hcrcb\  makes  application  to  the  probate  court,  said 

county  of  for  the  appointtnent  of  a 

board  of  review,  to  which  board  he  hereby  claims  an  appeal 
from  the  assessment  so  made  as  aforesaid. 

The  undersigned  also  herewith  files  i<.'ith  this  court  the 
necessary  bonds  for  cost  in  this  proceeding  as  required  by 
law. 

Dated  this day  of 


Appellant. 

Form  for  Order  of  Hearing  on  Claim  of  Appeal. 

Probate  Court  for  the  County  of 

At  a  session  of  said  court  held  in  the  probate  office  in 

the  city  of on  this 

day  of  ..........  present  the  Honorable , 

Judge  of  Probate. 

Whereas has  claimed  an  appeal  from 

the  assessment  for  benefits  on  the  . . . ., drain 

from  the  order  of  the  count \  drain  commissioner  on  the 

day  of  ,  and  is  filed  as 

agitory  bonds  required  therefor; 

Therefor,  it  is  ordered  by  this  court  that  the 

day  of at  10  o'clock  in  the  forenoon  of  that 

day,  be  fi.red  as  the  time  for  hearing  said  application  and 
appointing  such  board  of  review. 

It  is  further  ordered  that  a  copy  of  this  order  be  served 


§  284  THE  LAW  OF  TAXATION  412 

upon  the  said  county  drain  commissioner  at  least 

days  prior  to  the  time  fixed  for  the  appointment  of  the 
board  of  revieiv  . 


Judge  of  Probate. 

Form  for  Order  Appointing  of  Board  of  Review. 

State  of  Michigan.  } 

Probate  Court  for  the  County  of    }     ' 

At  a  session  of  said  Probate  Court  held  at  the  Probate 

Office  in  the  city  of on  the 

day  of ,  present  the  Hon 

Judge  of  Probate. 

In  the  mutter  of  the  appeal  from  the  assessment  of 
benefits  on  the  drain. 

This  being  the  day  fixed  for  the  appointment  of  such 
board  of  review,  and  after  the  hearing  of  parties  in  interest, 

it  is  ordered  that  ,  three  disinterested 

and  competent  freeholders  of  the  said  county  of 

but  not  residents  of  the  said  townships 

of which  said  drain  or  the  lands  affected 

thereby  are  situate,  be  and  are  hereby  appointed  as  a  board 
of  review  to  review  said  assessment  and  apportionment  of 
the  per  cent  of  benefits  in  the  construction  of  the 
drain. 

It  is  ordered  with  the  concurrence  of  the  county  drain 

commissioner  that the 

cay  of  at  10  o'clock  in  the  forenoon 

of  that  day  be  and  the  same  is  hereby  appointed  as  the 
time  of  meeting  of  such  board  and  (describe  place  of  meet- 


-I  1   !  LEVY  OF  THE  TAX  §  284 

ing  accurately)  as  the  place  where  said  board  of  review 
shall  meet  to  review  such  apportionment. 


Judge  of  Probate. 

Form  for  Oath  of  Board  of  Review. 

State  of  Michigan.     ) 
County  of ) 

We  do  severally,  solemnly  wear  to  faithfully  perform 

the  duties  of  a  board  of  review  on drain, 

to  rrciVrc'  the  assessment  for  benefits  upon  said  drain,  to 
hear  the  allegations  of  the  parties  in  interest  and  to  view 
the  lands  benefited,  and  if  in  our  judgment  there  be  mani- 
fest error  or  inequality  in  such  assessment,  to  make  such 
charges  as  ive  deem  just  and  equitable,  without  favor  or 
partiality  to  any  one. 

Given  under  our  hands  this day  of 


Board  of  Review. 

Form  for  Report  of  Board  of  Review. 

We  hereby  certify  that  pursuant  to  an  order  of  the  pro- 
bate court  for  the  county  of  ,  we 

the  undersigned,  constituting  the  board  of  review  of 

drain,  did  meet  on  the 

day  of ,  at  10  o'clock  A.  M.,  at 

That  at  the  time  and  place  aforesaid  we  proceeded  to 

vine  the  land  and  premises  of  the drain. 

special  assessments  district,  and  to  review  the  assessment 


§  285  THE  LAW  OF  TAXATION  414 

and  apportionment  of  benefits  u>pon  said  drain,  made  by  the 
county  drain  commissioner  of  said  county,  and  to  hear  the 
proofs  and  allegations  of  all  parties  in  respect  to  the  matter 
of  said  appeal. 

That  in  our  judgment  there  is  manifest  error  cmd  in- 
equality in  said  assessment  and  apportionment  and  ive  do 
hereby  order  the  following  changes  to  be  made,  deeming 
such  changes  fust  and  equitable;  (describe  each  piece  of 
land  upon  which  any  change  is  made,  giving  the  per  cent 
assessed  by  the  county  drain  commissioner  and  the  per 
cent  as  fixed  by  the  board  of  review.) 

Given  under  our  hand  this   day  of 


Board  of  Review. 


§285.     Costs  and  Expenses. 


Whenever  a  portion  of  the  drain  proceedings  are  set 
aside  and  the  commissioner  begins  de  novo  at  an  earlier 
stage,  the  expense  of  the  work  and  proceedings  so  set  aside 
is  a  part  of  the  cost  of  the  drain,  and  may  be  included  in 
the  assessment30.  If  the  drain  has  been  partly  constructed, 
and  the  entire  proceedings  set  aside,  the  commissioner  may 
begin  de  novo,  on  a  new  petition,  and  include  the  cost  of  the 
work  done  as  part  of  the  expenses  of  the  new  proceedings31. 
An  attorney  fee  is  not  a  legal  charge  against  a  drain;  and 
it  must  appear  that  clerk  hire  does  not  exceed  the  per  diem 

30.  C.  L.  §4354:  See  De  Novo  31.  Hauser  v.  Burbank,  117 
Proceedings.  §365.  Gillison  v.  Mich.  463,  465;  Anketell  v.  Hay- 
Cressman,  100  Mich.  591.  ward,  119  Mich.  525,  527. 


415 


LEVY  OF  THE  TAX 


£86 


of  the  commissioner32.  The  provision  authorizing  a  levy 
of  1Q%  above  the  cost  of  the  drain  is  constitutional83.  It 
is  competent  for  the  legislature  to  provide  that  the  board  of 
supervisors  may  disallow  any  item  of  the  expense  of  a 
drain34.  On  a  motion  to  have  the  court  retax  costs,  he 
can  only  consider  the  objections  filed  with  the  clerk.  Certi- 
fied copies  of  exemplification  of  record  on  a  return  to  a 
writ  of  certiorari,  are  not  taxable  as  costs.  It  is  the  duty 
of  the  prolate  judge  to  make  this  return  for  $2.00,  follow- 
ing the  practice  of  certiorari  from  justice  courts35.  Witness 
fees,  stenographer  fees  and  attorney  fees  are  not  recover- 
able, by  the  parties  whose  lands  are  taken,  even  though  a 
jury  was  demanded  to  determine  the  necessity,  etc.  of  the 
drain36.  Costs  of  the  circuit  court  cannot  be  taxed  against 
either  party  in  any  action  instituted  for  the  purpose  of 
setting  aside  any  sale  of  delinquent  lands  for  taxes37. 

!j286.     Board  of  Supervisors. 

The  board  may  refuse  to  order  a  drain  tax  spread  because 
of  illegalities  in  the  proceedings38.  It  has  no  power,  how- 
ever, to  order  a  drain  tax  spread  at  large  either  upon  the 
county  or  the  townships,  instead  of  upon  the  lands  bene- 
fited39. The  statute  provides  that  no  drain  tax  shall  be 
spread  unless  directed  by  the  board,  as  in  the  case  of  town- 


32.  Zink   v.    Board    of    Super- 
visors, 68  Mich.  283. 

33.  C.  L.  §4354;  Auditor  Gen- 
eral v.  Melze.  124  Mich.  285. 

34.  Rice     v.     Probate     Judge, 
141  Mich.  693;  Alberts  v.  Gibson, 
Ml    Mich.  698. 

.15.  Patterson  v.  Calhoun 
Judge,  144  Mich.  416. 

36.  Patterson  v.  Mead,  138 
Mich.  659. 


37.  Hausy  v.  Miller,  15  L.  N. 
770. 

38.  C.    I..     §4356:      Smith    v. 
Board  of   Supervisors,  115   Mich. 
202 ;  Tinsman  v.  Board  of  Super- 
visors.   90    Mich.    382;    Zink    v. 
Board   of   Supervisors,   68   Mich. 
383. 

39.  Butler   v.    Saginaw   Board, 
2fi  Mich.  22. 


$  286  THE  LAW  OF  TAXATION  416 

ship  taxes.  The  adoption  of  a  report  by  the  board  in 
which  appeared  a  certain  sum  of  money  to  be  spread  as 
"drain  tax,"  is  not  a  direction  to  spread  the  tax  such  as 
the  statute  contemplates,  and  the  supervisor  of  the  town- 
ship will  not  be  compelled  to  spread  such  tax40.  The 
adoption  of  a  report  that  the  supervisor  be  authorized  to 
reassess  certain  drain  taxes,  is  a  sufficient  direction  to 
place  them  upon  the  township  roll41.  The  board  will  not  be 
compelled  to  order  spread  a  drain  tax  until  all  of  thv. 
records  of  the  proceedings  have  been  filed  with  the  county 
clerk42;  but  a  drain  tax  will  not  be  vitiated  because  not 
reported43.  The  statute44  authorizing  the  board  of  super- 
visors to  direct  such  of  the  several  amounts  of  money  pro- 
posed to  be  raised  for  township,  school,  highway,  drain, 
and  all  other  purposes,  as  shall  be  authorized  by  law,  to 
be  spread  upon  the  assessment  rolls  of  the  proper  town- 
ship, does  not  endow  the  board  with  unlimited  power  to 
determine  the  validity  of  taxes  assessed  by  township  and 
county  officers;  and  the  action  of  the  board  is  not  always 
essential  to  the  spreading  of  the  tax.  It  is  only  the  duty 
of  the  board  to  see  that  the  sums  are  authorized  by  law, 
and  then  the  duty  to  give  the  proper  direction  is  imperative. 
This  provision  of  the  statute  must  be  construed  with  other 
provisions  controlling  special  proceedings,  and  especially 
where  such  statutes  are  passed  subsequent  to  the  one  above 
referred  to.  The  drain  law  provides  a  speedy  remedy  for 
those  desiring  to  contest  the  validity  of  the  proceedings. 
Under  the  statute,  the  courts  have  no  power  to  review  the 
action  of  a  drain  commissioner  for  defects  in  his  proceed- 

40.  Post    v.    Harris,    95    Mich.      88  Mich.  245. 

321.  43.     Lambach    v.    O'Meara,    107 

41.  Bumps      v.      Jepson,      106  Mich.    29 ;    Matran    v.    Tompkins, 
Mich.  641.  99  Mich.  528 

42.  Conley  v.  St.  Clair  Board,  44.     C.  L.  §3860. 


417  LEVY  OF  THE  TAX 

ings,  unless  the  party  complaining  takes  steps  to  determine 
their  validity  within  the  time  fixed  by  the  statute.  It  would 
be  incongruous  to  confer  this  power  upon  the  board  after 
the  time  fixed  for  the  courts  to  exercise  it  has  expired. 
If  this  were  the  law,  the  construction  of 'the  drain  must 
be  deferred  often  times  for  a  year  or  more,  awaiting  the 
action  of  the  board,  and  the  law  providing  for  a  review 
would  become  a  nullity.  The  drain  law  provides  a  spec'al 
remedy,  and  anyone  complaining  must  avail  himself  of  that 
remedy.  If  he  avails  himself  of  it,  he  has  had  his  day  in 
court.  If  he  fails  to  avail  himself  of  it,  he  is  barred  by 
the  statute  from  questioning  its  legality  in  any  suit  at  law 
or  in  equity.  The  board  cannot  refuse  to  spread  the  tax 
because  of  alleged  excessive  adjournments  of  the  sale  and 
assessment,  or  because  of  a  small  change  in  the  first  order 
of  determination,  in  the  size  of  the  drain45.  However,  the 
board  may  refuse  to  spread  the  tax  for  errors  occurring 
more  than  ten  days  after  the  final  order  is  filed  since  the 
statutory  certiorari  could  not  be  taken  to  such  defects,  under 
Act  272  of  Public  Acts  of  189948.  It  is  constitutional  to 
permit  the  board  to  require  the  written  consent  of  a 
majority  of  all  members  of  the  town  boards  whose  town- 
ships are  traversed  by  a  drain  to  consent  to  the  construction 
of  a  drain47.  It  is  competent  for  the  legislature  to  provide 
that  the  drain  commissioner  shall  submit  to  the  board  of 
supervisors  the  items  of  expense  upon  all  drains  before  the 

45.     Horn     v.     Livingston     Co.  granting    of    the    writ    is    a    dis- 

Board,   135   Mich   553.     In   Sher-  cretionary    measure,    and    it    will 

wood  v.  Rynearson,  141  Mich.  92,  not  be  allowed  where  the  relator 

the    court    refused    to    grant    a  himself  has  not  clean  hands, 

mandamus   to  compel   the   super-  46.     Kenyon  v.  Ionia  Board,  138 

visor     to     spread     a    drain     tax,  Mich.  544. 

where  the  answer  to  the  petition  47.     Chandler     v.     Heiser,     153 

charged    fraud,    and    the    relator  Mich.    1,    construing    Act    21    of 

demurred    to    the    answer.      The  Public  Acts  of  1905. 
(27> 


§  287  THE  LAW  OF  TAXATION  418 

sale  of  the  drain,  and  that  such  board  may  disallow  any 
item  thereof.  It  is  also  competent  to  provide  that  the 
board  of  supervisors  may  provide  further  conditions  than 
that  specified  in  the  statute,  for  the  sale  of  drains.  The 
constitution,  proves  that  the  legislature  may  delegate  powers 
of  local  legislation  to  municipalities  and  board  of  super- 
visors; and  a  drain  is  a  local  matter48. 

§287.     The  Supervisor. 

Originally  the  supervisor  could  refuse  to  spread  a  drain 
tax  when  the  proceedings  were  fatally  defective;  and  the 
court  would  permit  him  to  make  this  defense49.  The 
statute  provides  that  the  clerk  shall  certify  the  drain  tax 
to  the  supervisor,  and  that  he  shall  lay  the  same  before  the 
board  of  supervisors.  No  discretion  is  lodged  with  either 
of  them.  The  levy  of  taxes  and  assessments  cannot  depend 
upon  the  opinion  of  those  officers  as  to  their  regularity. 
While  they  could  not  be  compelled  to  perform  the  specified 
acts  unless  the  proper  assessment  roll  was  filed  and  certi- 
ficate delivered,  it  is  not  for  such  officers  to  sit  in  judg- 
ment upon  the  propriety  of  enforcing  tax  levies  and  assess- 
ments. It  does  not  lie  with  such  a  person,  as  a  ministerial 
officer,  to  object  that  the  law  under  which  the  tax  was  laid 
was  unconstitutional.  He  is  not  authorized  or  required  to 
adjudicate  the  law.  In  a  summary  proceeding  on  hearing 
for  mandamus,  the  court  will  not  determine  the  question 
of  the  constitutionality  of  the  law,  involving  the  rights  of 
third  persons,  but  will  leave  that  question  to  be  settled 
when  properly  presented  by  parties  to  an  action.  A  public 


48.     Constitution    of    1850,    Art.  Albert  v.  Gibson.  141  Mich.  698. 
IV.    §38;    Beecher's    Constitution          49.     C.    L.    §4357.      Nugent    v. 

of   1908,    Art.   VIII,   §8.     Rice   v.  Erb,    90    Mich.    278.      Hubbell    v. 

Probate    Judge,    141    Mich.    693;  Robertson,  65  Mich.  538. 


11!"  LEVY  OF  THE  TAX 

officer  entrusted  with  the  collection  and  disbursement  of 
revenue  has  no  right  to  refuse  to  perform  his  ministerial 
duties,  prescribed  by  law,  because  he  may  apprehend  that 
others  may  be  injuriously  affected  by  it.  He  is  not  respon- 
sible for  the  law,  or  for  the  possible  wrongs  which  may 
result  from  its  execution.  Public  policy,  as  well  as  public 
necessity  and  justice,  require  prompt  and  efficient  action 
from  such  officers.  The  consequences  would  be  ruinous  if 
they  could  withhold  their  services,  and  the  necessary  means, 
either  from  timidity  or  captiousness,  until  all  questions  of 
law  which  might  arise  in  the  performance  of  their  official 
duties  should  first  be  judicially  settled50.  It  is.  however, 
within  the  discretion  of  the  court  to  refuse  the  writ  of 
mandamus  in  cases  where  the  circumstances  show  that 
justice  requires  it81. 

Neither  can  the  supervisor  set  up  a  pending  appeal  in  the 
supreme  court  to  review  the  proceedings  of  the  drain  in 
question,  as  an  excuse  for  not  putting  the  tax  on  the  roll52. 
Under  Act  272  of  Public  Acts  of  1899,  the  supervisor  is 
authorized  to  claim  an  appeal  in  behalf  of  his  township, 
and  to  petition  the  probate  court  to  appoint  the  board' of 
review  therein  specified83.  He  is  not  entitled  to  notice  of 
drain  proceedings  before  the  probate  court54.  A  private 
person  who  would  be  entitled  to  an  order  on  the  fund,  is 
competent  to  apply  for  a  mandamus.  In  case  the  time 
has  gone  by  forgetting  the  tax  on  to  the  proper  roll, 
it  will  be  ordered  spread  the  next  year55.  While  a  rejected 

r>o.    Lambach   v.   O'Meara,   107  94  Mich.  386. 

Mich.  29,  30;   Smyth  v.  Titcomb.  52.     Brown     v.     Nehmer,     128 

31  Me.  286;  People  v.  Halsey,  53  Mich.  690. 

Barb.    547 ;    Waldron    v.    Lee,    5  53.     Long  v.  Probate  Judge,  130 

Pick.     328;     Hudson     Village    v.  Mich.  338. 

Whitney.    53   Mich.    158;    Schultz  54.     Flynn    Twp.    v.    Woolman, 

v.  Smith.  119  Mich.  634.  133  Mich.  508. 

51.     Nugent    v.    Erb,    90    Mich.  55.    Canal    Co.    v.    Supervisor. 

278;  Cheboygan  v.  Mentor  Twp.,  139  Mich.  248. 


§§  288,  289  THE  LAW  OF  TAXATION  420 

drain  tax  may  be  reassessed,  the  supervisor  has  no 
authority  so  to  do  unless  the  record  of  the  board  of  super- 
visors shows  the  particular  parcel  to  be  assessed,  and  the 
drain  for  whose  benefit  it  is  levied56. 

§288.     Construction  of  Drains. 

Where  a  drain,  is  constructed  by  the  contractor  larger 
than  called  for  by  the  specifications,  it  affords  no  ground 
for  setting  aside  the  drain  proceedings  or  the  taxes.  The 
contractor  may  be  guilty  of  a  trespass  which  the  com- 
missioner is  in  no  manner  responsible  for57.  The  accept- 
ance, by  the  drain  commissioner,  of  a  drain  contract  which 
is  in  fact  unfinished,  is  not  final.  Although  the  completion 
of  the  work  has  been  certified  to  by  the  commissioner,  he 
may  yet  stop  the  payment  of  orders  issued  therefor,  though 
such  orders  are  held  by  innocent  purchasers  for  value58. 
The  fact  that  the  commissioner  has  certified  that  a  drain  is 
completed,  when  it  is  not,  will  not  justify  setting  aside  the 
tax59.  Sewer  pipe  may  be  used  in  the  construction  of  a 
drain,  though  not  mentioned  in  the  petition;  but  the  pur- 
chase of  them  must  be  made  at  a  public  sale.  The  com- 
missioner cannot  privately  furnish  them60. 

§289.     Tax  Roll. 

Where  a  drain  tax  is  not  placed  upon  the  roll  in  such  a 
way  as  to  identify  the  drain  to  which  it  belongs,  by  name 
or  otherwise,  it  is  void61.  An  officer  is  charged  with  notice 
of  the  invalidity  of  his  roll  when  such  invalidity  appears 

56.  Auditor  General  v.  Tuttle,  59.     Pollock     v.     Sowers,     137 
146  Mich.  106.  Mich.  368. 

57.  C     L.     §4343.      Angell    v.  60.     Kenyon  v.   Board  of  Ionia 
Cortright,  111  Mich.  223.  Co.,  138  Mich.  544. 

58.  Van    Akin    v.    Dunn,    117  61.     C.  L.  §§4355,  4359.     Dunn- 
Mich.  421.  ing  v.  Calkins,  51  Mich.  557. 


421  LEVY  OF  THE  TAX 

upon  its  face;  as  where  a  drain  tax,  under  the  law  of  1881, 
was  reassessed  under  the  law  of  1885,  and  a  levy  made 
therefor.  There  was  no  power  to  levy  for  a  drain  tax 
under  the  law  of  18816* 

Form  for  Certificate  of  Drain  Tax  Roll. 

/  hereby  certify  that  I, county  drain 

commissioner  of county,  Michigan,  on 

the day  of ,  790 . . ,  at 

in  the  said  township  of ,  that  being  the 

time  and  place  at  which  a  certain  drain  known  and 

designated  as  " drain,"  i\.\is  let  by 

me.  did  then  and  there,  before  receiving  any  bids  for  the 
construction  of  said  drain,  order  and  determine  that  the 
whole  per  cent  of  the  taxes  to  be  spread  for  benefit  to  lands 
in  the  construction  of  said  drain  should  be  spread  and 
collected  in  this  fiscal  year,  to  wit:  190. .  ,  and  I  hereby 
certify  that  the  above  determination  was  then  and  there 
publicly  announced  by  me  for  the  information  of  bidders. 

I  also  hereby  certify  that  the  above  and  foregoing  is 

the  "special  assessment  roll  of drain,"  for 

the  township  of ,  county  of 

State  of  Michigan,  and  that  I  have  entered  therein  a  correct 
description  of  all  the  tracts,  parcels  and  subdivisions  of 
lands  benefitted  by  said  drain,  as  provided  by  laic  .and  that 
I  have  placed  opposite  each  description  the  amount  of  the 
per  cent  heretofore  determined  upon  by  me,  also  the  amount 
of  the  per  cent  apportioned  by  me  to  the  said  township  of 
at  large. 

Whereas,  I county  drain  commissioner 

62.     Mogg    v.    Hall.    83    Mich.      576.  ssi. 


§  290  THE  LAW  OF  TAXATION  422 

of County,  Michigan,  did  on  the 

day  of A.  D.  190..., 

determine  and  apportion  among  such  of  the  several  town- 
ships in  the  said  county  of as  have  lands 

situated  therein  liable  to  be  assessed  for  the  laying  out  and 
establishing  of  a  certain  drain  known  and  designated  as 

" drain,"  the  per  cent  of  the  entire 

amount  to  be  leined  by  reason  of  such  laying  out  and  estab- 
lishing. 

And  whereas,  upon  a  computation  of  the  whole  cost  of 
the  drain  I  have  ascertained  the  entire  sum  of  the  cost  of 

laying  out  and  establishing  said  drain  to  be 

dollars. 

Now,  Therefore,  I county  drain  com- 
missioner as  aforesaid,  do  hereby  apportion  the  said  sum 

of dollars  between  such  tozvns  severally 

upon  the  said  basis  and  per  cent  as  follows,  to  wit: 

Given  under  my  hand  this  day  of 

A.  D.  ipo. .  . 


County  Drain  Commissioner, 
Of County,  Michigan. 

§290.     Sale  of  Lands. 

The  statute  provides  that  delinquent  drain  taxes  shall 
follow  the  course  of  other  taxes,  and  be  collected  in  the 
same  manner.  This  authorizes  a  sale  of  the  land63.  A 
sale  of  land  for  drain  taxes,  under  the  provisions  of  the 
general  tax  law,  is  valid64 ;  and  a  deed  from  the  auditor 
general  is  prima  facie  evidence  of  the  regularity  of  the 

63.     Bump  v.  Jepson,  106  Mich.       Mich.  647. 

641,    644;    Rumsey  v.   Griffin,    138          64.     Hilton    v.    Dumphey,    113 
Mich.  413;  Blondin  v.  Griffin,  133      Mich.  241. 


I'.'.'  5  I  KVY  OF  THE  TAX 


taxes65.  A  sale  of  land  for  void  drain  taxes  constitutes  a 
cloud  upon  title68. 

$291.     Drain  Funds  and  Orders. 

A  drain  tax  cannot  be  levied  upon  a  portion  of  the  public 
for  the  construction  of  a  drain  in  which  the  public  iiave  no 
interest.  Therefore,  the  board  of  supervisors,  though 
authorized  by  statute,  cannot  order  drain  taxes  spread  at 
large,  either  upon  the  township  or  county,  except  as  ordered 
by  the  drain  commissioner  and  in  accordance  with  his 
assessment62*  A  drain  fund  is  not  a  township  fund,  and 
the  township  has  no  interest  therein67.  Contractors  holding 
orders  on  a  certain  drain  fund,  and  owners  of  specific 
parcels  of  land  who  are  contesting  a  drain  tax,  have  no 
such  interests  as  will  support  a  bill  of  interpleader  by  the 
collector,  where  he  has  collected  the  tax  under  protest68. 
Where  an  owner  of  tax  has  a  drain  tax  vacated,  he  cannot 
there  after  compel  the  authorities  to  provide  for  payment 
of  orders  on  that  drain69.  Neither  will  the  court  compel 
the  payment  of  warrants  as  a  special  assessment  fund  where 
the  legality  of  the  contract  in  question  is  denied,  pending 
a  suit  by  a  tax  payer  to  have  such  contract  declared  void70. 
Where  the  township  at  large  raised  a  tax  based  upon  illegal 

65.  Palmer  v.   Rich,   12   Mich.         68.    Wallace  v.  Sorter,  :>«  Mich. 
414.  159;    Alger    v.    Slaght,    64    Mich. 

66.  Frost    v.    Leatherman,    55      589. 

Mich.  53.  69.     Brownell  v.  Gratiot  Board, 

66a.     Butler  v.  Saginaw  Board,  49  Mich.  41  ;  Mason  v.  Gladstone 

26  Mich.  22,  29.  City,   93    Mich.    232.   holding  that 

67.  Barker  v.  Vernon  Twp.,  63  such  a  person  cannot  compel  the 
Mich.      516,      519;      Dawson      v.  payment  of  an  order  on  the  fund 
Aurclius     Twp.,    49     Mich.     479;  to  which  the  tax  set  aside  would 
Cathcart     v.     Merritt     Twp.,     38  have  gone. 

Mich.  24&;  Anderson  v.  Hill,  54  70.  Detroit,  etc.,  Plank  Road 
Mich.  477;  See  Liability  of  Town-  Co.  v.  Highland  Park,  142  Mich. 
ship,  §360.  326. 


§  292  THE  LAW  OF  TAXATION  424 

drain  proceedings,  the  township  board  transferred  the 
money  so  raked  back  to  the  contingent  fund  cf  the  town- 
ship, and  this  atiion  was  sustained71.  The  acceptance  of 
drain  contract  by  the  drain  commissioner,  rnd  the  issuing 
of  an  order  therefor,  is  not  a  judicial  proceeding;  and 
payment  of  the  order  may  be  refused  either  for  mistake, 
or  the  non-completion  of  the  contract,  though  the  order  is 
in  the  hands  of  an  innocent  third  party,  for  value,  pur- 
chased before  due72.  Where  a  drain,  having  once  been  laid 
out,  is  deepened,  widened  and  extended,  funds  raised  on 
the  last  proceeding  cannot  be  used  to  pay  orders  issued  on 
the  first73.  A  drain  commissioner  will. not  be  held  person- 
ally liable  on  a  drain  order  issued  by  him  simply  because 
the  supervisors  illegally  refuse  to  spread  the  drain  tax74. 

§292.     Liability  for  Tax. 

The  drain  law  of  1881  did  not  contain  any  provision 
making  the  drain  tax  a  personal  charge  against  the  owner 
of  the  land,  nor  was  there  any  power  or  authority  in  the 
collector  to  seize  and  sell  personal  property  of  the  owner 
to  satisfy  such  tax,  as  in  the  case  of  the  collection  of  gen- 
eral taxes.  Where  a  tax  of  1881  was  reassessed  under 
the  law  of  1885,  the  statute  could  not  add  to  it  the  element 
of  personal  lisfbility75.  A  purchaser  takes  state  swamp 
lands  liable  to  the  drain  taxes  thereon  and  cannot  contest 
them™. 


71.  Vaughn   v.    Ellis,    Supreme  case  of  shortage,  does  not  apply 
Court    File    No.    11038,    not    re-  to   proceedings    had   prior   to   the 
ported.  passage  of  the  act. 

72.  Van    Akin    v.    Dunn,    117  74.     Nash  v.  Kenyon,  151  Mich. 
Mich.  421.  152. 

73.  Dean  v.  Clinton  Co.  Treas-  75.     C.  L.   §§4350,  4367.     Mogg 
urer,  146  Mich.  645,  holding  that  v.  Hall.  83  Mich.  576,  581. 

Act  222  of   Public   Acts  of  1903,  76.     Cook    v.    Auditor    General, 

providing    for    a    reassessment    in  124  Mich.  430. 


} •.'."•  LEVY  OF  THE  TAX  Ji  -.'Ho 

§293.     Liability  of  Townships. 

'1'lie  township  is  in  no  way  interested  in  drain  proceed- 
ings or  drain  funds,  and  should  not  be  made  a  party  to  a 
suit  respecting  them77.  The  township  drain  commissioners 
were  elected  in  the  townships,  but  they  had  their  independ- 
ent duties  to  perform,  in  respect  to  which  they  were  neither 
under  the  control  of  the  township  nor  was  the  townships, 
as  such,  in  any  manner  concerned.  The  laying  out  of 
drains  is  commonly  a  matter  of  mere  neighborhood  interest ; 
they  affect  small  bodies  of  lands;  the  taxes  laid  are  local 
assessments,  and  did  not,  and  could  not,  under  the  statute, 
become  a  general  charge.  In  the  performance  of  his  duties, 
the  commissioner  is  in  no  sense  the  agent  of  the  township, 
and  there  is  no  township  responsibility  for  his  miscon- 
ducts or  defaults.  Though  the  local  levies  were  collected 
by  the  township  treasurer  and  received  into  the  township 
treasury,  they  were  not  received  for  the  township  and  did 
not  at  any  time  become  a  part  of  the  township  money.  In 
the  treasurer's  hands  they  were  a  specific  fund;  collected 
as  such  and  held  by  him  to  be  paid  out  on  orders  on  the 
drain  fund  in  favor  of  persons  found  to  have  claims  upon 
it.  The  determination  of  these  claims  was  made  by  the 
drain  commissioner,  and  the  township  board  drew  orders 
on  his  determination,  but  exercised  in  respect  to  it  no  in- 
dependent discretion  of  their  own,  and  were  under  no 
obligation  to  look  beyond  the  commissioner's  report.  In 
drawing  these  orders  the  officers  were  not  the  agents  of  the 
township.  For  convenience,  and  to  avoid  a  multiplicity  of 
officers,  certain  township  officers  were  charged  with  duties 
in  connection  with  it ;  but  this  was  a  mere  matter  of  admin- 

77.  Barker  v.  Vernon  Twp.,  63  Hillyer  v.  Jonesfield.  114  Mich. 
Mich.  516.  519;  Emerson  v.  644.  construing  86.  Chap.  6.  Act 
Walker  Twp.,  63  Mich.  483;  203  of  Public  Acts  of  1893. 


§  293  THE  LAW  OF  TAXATION  426 

istration  and  does  not  change  the  nature  of  the  proceedings. 
Therefore,  when  drain  monies  are  paid  under  protest  and 
suit  is  brought,  the  action  should  be  against  the  collector 
and  not  against  the  municipality78.  The  county  is  not  liable 
for  rejected  county  drain  taxes  under  the  law  of  188979. 
The  township,  however,  was  liable  to  the  county  for 
township  drain  taxes,  under  the  law  of  1889,  when  they 
were  charged  back  to  the  county  by  the  auditor  general, 
and  the  township  had  had  the  benefit  of  them  by  settle- 
ment and  disbursement80.  The  township  board  has  no 
authority  to  employ  an  attorney  to  defend  the  township 
collector  in  suits  arising  over  taxes,  without  a  vote  of  the 
electors;  and  in  no  event  can  an  attorney  be  employed  in 
behalf  of  the  township  to  defend  such  collector  in  his  acts 
in  collecting  drain  taxes.  A  township  may  defend  and 
indemnify  its  officers  in  bona  fide  attempts  to  discharge 
their  duty  when  such  duty  is  one  imposed  by  law,  and  when 
the  matter  is  one  in  which  the  township  has  an  interest. 
When  the  township  has  no  interest,  the  contract  is  ultra 
vires,  and  no  implied  contract  arises  to  compensate  the  con- 
tractor for  work  actually  done.  Although  townships  may 
defend  their  officers  in  some  cases,  there  is  no  legal 
obligation  to  do  so.  It  is  not  within  the  power  of  the 
township  officers  to  obligate  the  town  to  do  so  by  employ- 
ing counsel  upon  behalf  of  the  town,  nor  can  the  town- 
ship board  do  so.  The  law  permits  townships  to  sue  and 
be  sued,  and  the  supervisor  may  prosecute  in  the  name  of 
the  people,  or  otherwise,  for  penalties  and  forfeitures  in- 

78.     Dawson  v.   Aurelius  Twp.,  54  Mich.  477,  485. 

49     Mich.     479,     480 ;     Camp     v.  79.     Mason      v.      New      Haven 

Algansee     Twp.,     50     Mich.     4;  Twp.,  82  Mich.  435. 

Taylor   v.   Avon   Twp..   73   Mich.  80.    Mason   v.    Hazelton   Twp., 

604;    Hilyer    v.    Jonesfield    Twp.,  82  Mich.  440. 
114  Mich.  644;  Anderson  v.  Hill, 


-»•*;  LEVY  OF  THE  TAX 

curred  within  his  township.  He  is  also  the  agent  for  the 
transaction  of  all  legal  business,  and  he  is  to  bring  and 
defend  suits  for  and  against  the  town,  and  process  is  to 
be  served  upon  him.  But  the  statute  does  not  confer  upon 
any  officer  or  board  the  power  to  determine  when  it  will 
protect  or  indemnify  an  officer  against  personal  litigation 
or  loss  when  there  is  no  legal  obligation  upon  the  township 
to  do  so.  These  matters  must  go  before  the  electors  of 
the  township81.  Even  though  the  municipality  contracts 
for  the  construction  of  a  sewer,  where  the  charter  provides 
that  such  expenses  shall  be  paid  only  out  of  the  special 
assessment  fund,  it  will  not  be  held  liable  where  such  fund 
is  not  collected82.  Where  a  township  treasurer  sells  property 
for  an  illegal  tax,  assumpsit  and  not  mandamus,  is  the 
proper  remedy  to  obtain  the  recovery  of  so  much  of  the 
proceeds  of  the  sale  as  were  applied  to  township  taxes. 
While  New  York  holds  that  the  township  would  not  be 
liable  at  all  because  its  treasurer  acts  as  the  agent  of  the 
state  and  county  as  well  as  the  township,  such  rule  does 
not  prevail  here  under  our  system.  The  township  is  liable 
for  so  much  money  as  it  thus  receives83. 

£294.     Liability  of  Petitioners. 

The  statute  provides  that  the  applicants  for  a  drain  "shall 
be  jointly  and  severally  liable  for  all  costs  and  expenses 
in  case  the  commissioner  upon  examination,  or  upon  exam- 
ination and  survey,  shall  determine  that  the  same  is  un- 
necessary or  impracticable,  or  in  case  the  proceedings  shall 
be  dismissed  for  other  cause84."  This  statutes  makes  the 


81.  Jenney    v.    Mussey    Twp.,  83.    Byles  v.   Golden  Twp..   52 
1LM   Mich.  229,  233.  Mich.  fil2. 

82.  Affield  v.  Detroit.  112  Mich.  84.    3    H.     S.    8l740b5.    C    L. 
560.  94319. 


§  294  THE  LAW  OF  TAXATION  428 

petitioners  liable  for  the  cost  of  the  proceedings  at  any 
stage  when  dismissed,  or  quashed,  for  any  cause  not  due 
to  the  negligence  of  the  commissioner.  This  may  include 
the  costs  and  expenses  of  two  set  of  special  commissioners 
when  the  first  set  disagreed85.  The  right  of  action  against 
the  petitioners  is  purely  statutory  and  the  commissioner 
must  bring  himself  within  its  terms  by  showing  the  exist- 
ence of  facts  upon  which  liability  is  predicated.  The 
application  is  the  foundation  of  the  whole  proceeding  in 
cases  of  this  kind.  It  is  this  which  confers  jurisdiction 
upon  the  commissioner  and  no  substantial  departure  from 
the  improvement  prayed  for  can  be  made  without  losing 
jurisdiction.  When  the  improvement  sought  to  be  made  by 
the  commissioner  is  materially  different  from  that  prayed  for 
in  the  petition,  the  petitioners  are  not  liable  for  any  of  the 
costs  of  the  proceedings,  if  they  fail86.  The  fact  that  the 
drain  commissioner's  proceedings  may  have  been  illegal  does 
not  release  the  signers  from  their  liability,  if  the  commis- 
sioner followed  the  course  set  out  in  the  petition.  The  peti- 
tioners are  the  actors  in  the  proceedings  and  the  statute  con- 
tempates  that  they  are  the  parties  in  the  suit.  It  is  mani- 
festly unjust  that  the  petitioners  should  shield  themselves  be- 
hind defects  in  their  own  petition  and  assert  a  want  of  juris- 
diction in  the  commissioner87.  The  evident  intent  of  the 
legislature  was  to  make  the  petitioners  in  these  cases  liable 
for  the  costs  if  they  failed  to  sustain  them  in  any  proceed- 
ings unless  the  failure  was  due  to  some  fault  or  neglect 
of  the  commissioner,  in  which  case  they  would  not  be 
liable88.  Where  proceedings  are  had  under  one  petition, 
and  abandoned  after  a  survey  etc.,  and  a  new  petition  had, 

85.  Parker     v.     Lincoln,      114          87.  Rosenstiel     v.     Miller,     96 
Mich.  306,  309.  Mich.  99. 

86.  Hall   v.    Palmer,   54   Mich.          88.  Case  v.  Telling,  112  Mich. 
270.  689. 


I'-'! I  LEVY  OF  THE  TAX 

the  signers  of  the  last  petition  will  not  be  liable  for  the 
expenses  under  the  first  petition,  though  the  survey  made 
under  the  first  petition  as  well  as  other  work,  was  used 
under  the  second  petition89. 

£294a.     Interest. 

Under  the  laws  of  1881  (H.  S.  §1713)  a  returned  drain 
tax  drew  interest  at  the  rate  of  seven  per  cent  per  annum. 
The  provision  of  the  law  of  1885  that  taxes  assessed  under 
the  1881  drain  law  should  be  assessed  with  all  lawful  costs, 
charges  and  interest,  the  returned  drain  tax  draws  seven 
per  cent  interest  and  not  one  per  cent  a  month.  The  pro- 
vision that  drain  taxes  shall  be  collected  in  the  same  manner 
as  other  taxes  does  not  authorize  the  imposition  of  the  one 
per  cent  a  month  as  charged  on  general  taxes90. 

89.  Gable    v.    Deal,    150    Mich.      Co.  v.  Snyder.  93  Mich.  325,  3*7; 
430.  Bump  v.  Jepson,  106  Mich.  641. 

90.  C.   L.   84359.   Jackson   Tile 


CHAPTER  XVIII. 
STATUTES  AND  RECORDS. 


§295.  Record,  Completeness. 

§296.  Filing  of  Records. 

§297.  Construction  of  Statutes. 

§298.  Saving  Clauses  and  Amendments. 

§299.  Validating  Acts. 

§300.  Healing  Acts. 

§301.  Constitutionality  of  Powers. 

§302.  Constitutionality  of  Laws. 

§303.  Various  Drain  Laws. 

§304.  Presumptions. 


§295.     Record.    Completeness. 

The  record  cannot  be  aided  by  knowledge  which  the  com- 
missioner conceals  in  his  own  breast ;  it  must  be  complete  in 
itself,  and  all  jurisdictional  facts  must  appears  on  its  face1. 
Similarly,  the  right  of  way  cannot  be  supplemented  by  a 
right  of  way  given  over  the  same  line,  but  based  upon  a 
former  petition2.  It  is  not  necessary  that  the  statute  should 
expressly  direct  what  should  be  matter  of  record  and  how 
the  record  should  be  made  up.  The  common  law  applies  and 
determines  that  in  all  such  proceedings  which  are  quasi 
judicial,  every  substantial  ingredient  should  be  set  down  in 


1.     Harbaugh     v.     Martin,     30  Com'r.,  40  Mich.  175 ;  Dupont  v. 

Mich.  234.     It  was  sought  here  to  Highway  Com'r..  28  Mich.  362. 
show  by  a  subsequent  paper  that          2.     Sturm    v.    Kelly,    120    Mich, 

the  signers  of  a  petition  were  in  685,  689 ;  Whisler  v.  Drain  Com'r., 

fact  a  majority  of  those  traversed  40  Mich.  591. 
by  the  drain.     Tireman  v.  Drain 


1  -"-I  STATUTES  AND  RECORDS  §§  296,  297 

writing3.  A  subsequent  petition  for  a  public  improvement 
cannot  be  supplemented  by  a  prior  petition  that  has  been  laid 
on  the  table  by  the  council4.  The  statute  provides  for  supply- 
ing missing  records  on  old  drains.  How  much  force  such 
records  would  have  is  not  determined5. 

£296.     Filing  of  Records. 

The  statute  requires  that  all  of  the  drain  records  shall  be 
filed  with  the  county  clerk  before  the  tax  is  ordered  spread 
by  the  board ;  and  they  will  not  be  compelled  to  order  the  tax 
levied  until  such  records  are  filed6.  Where,  however,  the 
tax  is  in  fact  spread  without  the  filing  of  such  records,  it 
will  afford  no  ground  for  recovering  such  taxes,  or  for 
setting  them  aside7.  The  record  need  not  be  filed  with  the 
county  clerk  before  the  assessment  is  made8. 

§297.     Construction  of  Statutes. 

Words  in  brackets  form  no  part  of  the  law  as  approved 
by  the  governor;  and  they  have  no  proper  place  in  the 
statute9.  Act  203  of  Public  Acts  of  1893  is  amendatory  of 
Act  227  of  Public  Acts  of  1885,  and  is  not  a  repealing  act. 
It  required  no  saving  clause  to  preserve  proceedings  already 
commenced.  The  Act  of  1885,  and  all  its  amendments,  are 
to  read  as  one  act10.  Legislative  construction  of  past  legis- 


3.  Milton  v.   Drain  Com'r.,  40  31. 

Mich.    229,    231.      In    Kroop    v.  6.    Conley  v.   St.   Clair   Board, 

Forman,  31   Mich.  144,  it  is  held  88  Mich.  245. 

that  the  petition  must  be  in  writ-  7.    Matran     v.     Tompkins,     99 

ing.    Whiteford  v.  Probate  Judge,  Mich.  528 :  Lambach  v.  O'Meara. 

53  Mich.  130;  Lane  v.  Burnap,  39  107  Mich.  29. 

Mich.    739;     Palmer   v.    Rich.    12  8.    Jones  v.  Gable,  150  Mich.  30. 

Mich.  414.  9.    Robertson     v.     Baxter,     57 

4.  Auditor   General   v.    Fisher,  Mich.  127,  131. 

84  Mich.  128,  131.  10.     Dennison     v.     Allen.     106 

5.  Freed  v.   Stuart,   147  Mich.  Mich.  295. 


§  298  THE  LAW  OF  TAXATION  432 

lation  has  judicial  force  for  the  future  only,  but  may  be  con- 
sidered for  the  light  it  throws  on  doubtful  language11. 

§298.     Saving  Clauses  and  Amendments. 

In  the  Act  of  1859,  the  saving  clause  "saving  any  engage- 
ment, contract  or  undertaking  heretofore  entered  into  by  the 
commissioner,"  did  not  keep  alive  any  proceedings  under 
the  old  law  in  an  incipient  stage,  where  no  vested  rights 
were  concerned12.  Act  203  of  1893,  though  containing  no 
saving  clause,  did  not  oust  the  township  drain  commissioner 
of  jurisdiction.  It  was  really  an  amendatory  act,  as  it  re- 
enacted  all  of  the  old  law  which  it  did  not  directly  amend. 
It  cannot  be  considered  as  a  repealing  act13.  Where  differ- 
ent sections  are  amended,  the  entire  act  must  be  read  as 
amended ;  and  the  saving  clause  in  the  original  act  so 
amended,  still  remaining  in  the  act  after  its  amendment, 
protects  and  saves  proceedings  begun  before  the  amend- 
ments took  effect.  Thus,  the  Act  of  1885  had  a  saving 
clause;  this  act  was  amended  by  Act  No.  Ill  of  Public  Acts 
of  1895,  which  amendatory  act  had  no  saving  clause;  but 
the  saving  clause*  of  the  Act  of  1885  applied  to  the  act  as  it 
was  after  amendment  in  189514.  Act  No.  272  of  Public  Acts 
of  1899  expressly  provides  that  all  proceedings  commenced 
should  be  carried  forward  under  the  law  under  which 
they  were  begun.  Therefore,  that  act  was  not  applicable  to 
proceedings  pending  when  it  took  effect15.  Act  No. 
612  of  Local  Acts  of  1905,  referring  to  Ionia  County, 
amended  the  drain  law  with  reference  to  that  county  alone; 

11.  Robertson     v.     Baxter,     57      Mich.  295. 

Mich.  127.  14.     Brady     v.     Hayward,     114 

12.  Palmer   v.    Rich.    12    Mich.      Mich.  326,  330. 

414.  15.     Gitchel     v.     Whipple,     126 

13.  Dennison     v.      Allen,     106      Mich.  646. 


STATUTES  AND  RECORDS  §  ~!>'J 

held,  that,  as  it  did  not  amend  the  general  act  in  its  appli- 
cation to  the  other  counties  of  the  state,  it  was  not  necessary, 
as  to  Ionia  county,  to  set  out  the  amended  law  in  full  in  its 
reference  to  this  county16. 

£299.     Validating  Acts. 

In  1871  the  legislature  passed  an  act  requiring  certain  old 
drain  taxes  to  be  reassessed,  and  if  not  collected  in  this 
manner,  to  be  assessed  upon  the  townships.  It  was  intended 
as  a  broad  healing  act  for  Saginaw  county,  many  of  the 
drain  taxes  therein  having  been  set  aside  by  the  courts.  The 
legislature  could  not  make  valid,  retrospectively,  what  it 
could  not  originally  have  authorized.  The  doing  of  a  void 
act  by  individuals  could  confer  no  new  power  upon  the  legis- 
lature. The  purpose  of  the  act  was  to  avoid  the  effect  of 
these  decisions,  not  directly  and  in  terms  setting  them  aside, 
but  by  a  direction  to  the  board  of  supervisors,  which,  in 
effect,  must  be  of  equivalent  import.  It  is  well  settled  that 
the  apportionment  of  legislative  power  to  one  department  of 
the  government,  will  not  authorize  it  to  exercise  any  portion 
of  the  judicial  power,  which  is  apportioned  to  another 
department.  The  apportionment  is  of  itself  an  implied  pro- 
hibition upon  its  exercise  by  the  legislature.  That  body, 
consequently,  cannot  set  aside  a  judgment  or  decree,  nor 
can  it  even  require  the  judiciary  to  give  a  new  hearing  in  a 
case  once  passed  upon.  The  line  which  separates  judicial 
from  legislative  authority  is  clear  and  distinct,  and  the 
principle  is  so  well  settled  and  understood,  that  it  is  seldom 
called  in  question,  and  probably  not  often  violated  except 
through  inadvertence17. 

16.  Rice  v.  Probate  Judge,  141       Butler  v.  Saginaw  Board,  25  Mich. 
Mich.  693.  22,  26. 

17.  Laws  of  1871,  Vol.  3,  p.  92 ; 
(28) 


§§  300,  301  THE  LAW  OF  TAXATION  434 

£300.     Healing  Acts. 

The  statute  provides  that  proceedings  shall  not  be  declared 
absolutely  void  in  consequence  of  any  error  or  informality 
either  of  the  officer  or  in  the  record18.  This  would  heal 
defects  which  are  only  irregularities  and  not  jurisdictional19. 
It  cures  lack  of  filing  the  drain  records  with  the  county 
clerk20.  Under  the  healing  act  of  188121,  which  attempted 
to  give  the  court  original  jurisdiction  over  drains  in  general, 
with  power  to  correct  all  errors  and  inequalities,  the  supreme 
court  declined  to  review  drain  proceedings  on  certiorari22 
C.  L.  §4381,  providing  that  drains  shall  conclusively  be 
deemed  regularly  established  after  ten  years,  is  valid23. 

§301.     Constitutionality  of  Powers. 

The  court  cannot  put  itself  in  the  place  of  the  con- 
stitutional jury  of  inquest.  Equity  jurisprudence  does  not 
include  the  exercise  of  eminent  domain,  and  .the  determin- 
ation of  the  necessity  of  a  public  improvement  or  damages 
occasioned  thereby24.  Neither  can  the  legislature  provide 
for  the  assessment  of  an  illegal  tax25.  And  equity  will  refuse 
to  review  the  merits  of  an  assessment  for  benefits26.  The 
legislature  cannot  convey  any  rights  by  causing  a  new  record 
to  be  made27.  It  cannot  require  railroad  companies  to  make 

18.  3     H.     S.     1740gl;     C.     L.  24.     C.     L.     §4364.       Clark     v. 
§4364.  Teller,  50  Mich.  618. 

19.  Brady     v.     Hayward,     114  25.     See  §389.  supra.     Butler  v. 
Mich.  326,  336;  Null  v.  Zierle,  52  Saginaw     Board,     26     Mich.     22; 
Mich.    540 ;    Whiteford    Twp.    v.  Mogg  v.  Hall,  83  Mich.  576.    This 
Probate  Judge,  53  Mich.  130,  134.  provision    was    first    incorporated 

2K).  Matran    v.    Tompkins,    99  in  the  drain  law  of  1875,  and  since 

Mich.  528.  maintained    in    various    forms    to 

21.  Laws  of  1881,  p.  367.   §40.  the   present   time.     (Act    No.   229 

22.  Tucker  v.  Parker,  50  Mich.  of  Public  Acts  of  1875). 

5 ;  Dietz  v.  Frazer,  50  Mich.  227.          26.     Houseman  v.  Circuit  Judge, 

23.  Zabel     v.     Harshman.     68      58  Mich.  367. 

Mich.  273,  2S1  ;  Patterson  v.  Mead          27.     Parker  v.  People.  22  Mich. 
Drain  Com'r.,  148  Mich.  659.  93. 


\ '•'•'•  STATUTES  AND  RECOH it- 

drain  culverts  at  their  own  expense28.  The  provision 
authorizing  the  commissioner  to  add  ten  per  cent  to  the 
cost  of  the  drain,  for  contingent  expenses,  is  constitutional". 

§302.     Constitutionality  of  Laws. 

Act  323  of  1881,  having  for  its  object  the  making  of 
internal  improvements  instead  of  benefiting  the  public 
health,  was  unconstitutional30.  The  object  of  Act  227  of 
the  Public  Acts  of  1885  is  sufficiently  expressed  in  its  title31. 
This  act  is  not  in  violation  of  Art.  XIV,  §9,  of  the  Con- 
stitution, relating  to  the  state  engaging  in  the  making  of 
internal  improvements.  This  work  is  one  of  local  improve- 
ment for  the  benefit  of  the  public  health,  and  to  be  paid  for 
by  the  township  and  persons  to  be  benefited  thereby,  and 
which  has  always  been  held  proper  under  our  constitution, 
when  the  improvement  has  been  undertaken  and  carried 
forward  under  reasonable  legal  limitations  and  safeguards32. 
The  act  is  constitutional  and  effective  notwithstanding  the 
unconstitutional  provisions  as  to  reviewing  assessments  and 
damages  by  the  courts33.  H.  S.  §1740,  as  amended  in  1893, 
empowering  commissioners  to  relay  a  drain  when  the  first 
proceedings  are  set  aside,  is  constitutional34.  C.  L.  §4334, 
requiring  railroads  to  construct  culverts  over  new  drains  at 
their  own  expense  is  unconstitutional  in  not  providing 
compensation35.  Act  592  of  Local  Acts  of  1905,  in 
Livingston  County,  providing  for  the  election  of  public 

28     Chicago,  etc.,  Ry.  v.  Chap-  Supervisors,  115  Mich.  202. 

pell.  124  Mich.  72.  32.     Gillett    v.    McLaughlin.    fiO 

29.     Auditor  General   v.   Melze.  Mich.  547,  551. 

121  Mich.  285.  33.     Mathias    v.    Drain    Com'r., 

.".<>.     Anderson  v.  Hill.  54  Mich.  73    Mich.    5;    These    unconstitu- 

477.  tional  sections  are  C.  L.  8543f>4-5. 

31.     Hall      v.      Slaybaugh,      69  34.     Heuser     v.     Burbank,     117 

Mii-h.  4S4;   Smith  v.  Carlow,  114  Mich.  463. 

Mich.  67;  Brady  v.  Hayward,  114  35.  Chicago,  etc..  Ry.  v.  Chap- 
Mich.  326;  Smith  v.  Board  of  pell.  124  Mich.  72,  74. 


§  303  THE  LAW  OF  TAXATION 

officers,  and  for  the  appointment  of  commissioner  by  the 
governor,  is  constitutional36.  Act  612  of  Local  Acts  of 
1905,  being  an  act  for  locating  and  establishing  drains  in  the 
County  of  Ionia,  does  not  repeal  the  general  drain  law  as  to 
drains  traversing  several  counties37.  Act  592  of  Local 
Acts  of  1905,  providing  for  the  appointment  of  a  drain 
commissioner  for  Livingston  County  is  constitutional38. 

§303.     Various  Drain  Laws. 

Act  612  of  Local  Acts  of  1905,  relating  to  Ionia  County, 
provided : 

1st.  That  no  drain  should  be  laid  out  unless  the  same 
should  be  necessary  for  the  public  health;  that  public  con- 
venience and  welfare  should  not  be  considered. 

2nd.  Requires  the  petition  to  be  signed  by  the  owners  of 
ever  one-half  of  the  value  of  the  lands  to  be  drained  or 
benefited,  as  shown  by  the  last  assessment  rolls. 

3rd.  Requires  the  assessment  for  benefits  to  be  made 
before  sale,  and  another  petition  signed  by -parties  repre- 
senting over  one  half  of  the  benefits  assessed,  for  the  con- 
tinuance of  the  proceedings. 

4th.  Limits  the  commissioner  to  the  precise  starting 
point,  route,  and  terminus  as  specified  in  the  petition. 

5th.  Authorizes  the  board  of  supervisors  to  make  further 
conditions,  which  must  be  complied  with. 

6th.  Permits  the  board  of  supervisors  to  disallow  any 
item  of  the  expense  of  the  drain. 

7th.  Suspends  pending  proceedings  until  the  board  of 
supervisors  shall  act. 

36.     Alexander  v.  McClear,  146      Judge.  149  Mich.  192. 
Mich.  45.  38.     Attorney    General    v.    Mc- 

?>7.     Whitmore        v.        Probate       Clear,  146  Mich.  45. 


437  STATUTES  AND  RECORDS  jj:;ii:; 

8th.  Provides  for  action  of  the  drain  commissioner  under 
the  general  law,  subject  to  the  foregoing  conditions. 

This  act  was  sustained;  the  fact  that  the  legislature  saw 
fit  to  impose  hard  and  exact  conditions  affords  no  grounds 
for  setting  it  aside.  All  of  the  conditions  are  possible  of 
fulfillment.  The  drain  commissioner  has  no  such  vested 
rights  to  the  prior  functions  of  his  office  that  his  duty  may 
not  at  any  time  be  restricted,  suspended,  or  enlarged39. 

Act  No.  495  of  Local  Acts  of  1903,  referring  to  Saginaw 
County,  required: 

1st.  A  petition  signed  by  not  less  than  one-third  of  all 
the  freeholders  of  lands  to  be  drained  or  benefited  thereby. 

This  act  was  held  inoperative  and  invalid  because  of  this 
provision.  The  persons  benefited  would  not  be  ascertained 
until  after  the  assessment  was  made;  and  this  assessment 
was  subject  to  change  on  appeal.  Therefore,  the  commis- 
sioner would  never  know  when  he  had  the  requisite  number 
of  signers40. 

Act  No.  237  of  Public  Acts  of  1903,  relating  to  the 
counties  of  St.  Joseph  and  Saginaw,  provided  that  the 
boards  of  supervisors  might,  from  time  to  time,  fix  and 
determine  further  conditions  than  those  set  forth  in  the  act, 
before  any  contract  should  be  made  or  entered  into  for  the 
construction  of  a  drain ;  and  further  provided  that  the  board 
might  disallow  any  item  of  expense.  This  act  was  held  con- 
stitutional, being  in  accordance  with  the  constitution,  which 
provides  that  the  legislature  may  delegate  powers  to  muni- 
cipalities and  boards  of  supervisors  to  enact  local  legis- 
lation41. 


39.  Rice  v.  Probate  Judge,  141          41.     Constitution   of    1850.   Art. 
Mich.  693.  IV.    533',    Bcecher's    Constitution 

40.  Alberts      v.      Gibson.  141      of  1903  Art.  V1IT,  58.    Alberts  v. 
Mich.  698.  Gibson,  141  Mich.  698. 


§  304  THE  LAW  OF  TAXATION  438 

£304.     Presumptions. 

It  will  be  presumed  to  be  necessary  that  an  established 
drain  needs  to  be  cleaned  out  and  kept  in  order42,  and  that 
the  petitioner  asks  for  legal  proceedings43 ;  and  that  if  a 
paper  is  not  found  where,  if  in  existence,  it  ought  to  be 
deposited,  that  it  was  never  in  existence44. 

42.  See   Records,    §366,    supra;      739. 

Barker  v.  Vernon  Twp.,  63  Mich.          44.     Hall   v.   Kellogg,   16   Mich. 
516,  518.  135;    Platt    v.    Stewart,    10    Mich. 

43.  Taylor  v.  Burnap,  39  Mich.      260. 


CHAPTER  XIX. 
HIGHWAY  AND  SURFACE  WATERS. 


§305.  Drains  in   Highways. 

5306.  Private  Drains  in   Highways. 

5307.  Private  Drains. 

5308.  Municipal  Liability. 

5309.  Drain    Out-lets. 

5310.  Bridges  and  Culverts. 

5311.  Obstructing  Highway  Drains. 

5312.  Diversion  of  Stream. 

5313.  Riparian  Rights  in  Lakes. 

5314.  Surface  Waters.    Lower  Proprietor. 

5315.  Percolating  Waters. 


§305.     Drains  in  Highways. 

Under  and  subject  to  the  regulations  of  the  statute,  high- 
way commissioners  may  provide  for  such  ordinary  highway 
ditches  and  culverts  as  the  good  of  the  road  shall  demand ; 
but  they  cannot  lawfully  depart  from  this  object,  which  is 
the  beginning  and  end  of  their  authority,  and,  under  color 
of  ditching  to  improve  a  road,  proceed  to  cut  drains  to  im- 
prove the  health  of  the  neighborhood  and  improve  the  sur- 
rounding lands  and  improve  their  value.  The  power  to' 
ditch  and  drain  for  road  purposes  is  necessarily  very  limited, 
and  its  exertion  is  only  authorized  when  the  sole  end  of  such 
exertion  is  the  improvement  of  the  road  and  the  consequent 
benefit  to  the  public;  and  the  power,  after  being  rightfully 
set  in  motion,  in  connection  with  an  authorized  object,  can- 
not be  lawfully  carried  beyond  such  object  and  into  a  domain 
which  the  law  has  assigned  to  another  system  and  authority. 


305 


THE  LAW  OF  TAXATION 


4  t<) 


In  case  of  mere  highway  ditches  the  whole  matter  is 
summary  and  substantially  of  discretion.  No  provision  is 
made  for  allowing  damages,  the  law  assuming  that  the  work 
is  exclusively  upon  public  grounds,  and  that  nothing  is 
authorized  to  be  done  which  could  fairly  be  considreed  as  a 
private  and  individual  damage.  If  the  highway  commis- 
sioner exceeds  his  authority  in  this  respect,  he  will  be 
personally  liable.  If,  however,  in  constructing  an  ordinary 
ditch  such  as  the  good  of  the  road  would  dictate,  it  becomes 
either  necessary  or  expedient  to  dig  a  ditch  in  the  highway 
past  the  gateway  of  a  private  owner,  the  commissioner,  or 
overseer  acting  under  his  direction,  may  do  it,  although 
the  private  owner  may  be  required  to  bridge  the  same.  It 
would  be  the  performance  of  a  public  duty  and  a  lawful 
exercise  of  authority,  and  the  private  injury,  if  any,  would 
be  damnum  absque  injuria1.  The  highway  overseer  has 


1.  C.  L.  §4336.  Highway 
Com'r.  v.  Ely,  54  Mich.  173,  177; 
Conrad  v.  Smith,  32  Mich.  429; 
Dean  v.  Millard,  151  Mich.  582; 
Parker  v.  Fields,  48  Mich.  250. 

Territorial  Laws,  Vol.  1,  p.  453 
(1819),  provided  that  the  super- 
visor could  dig  ditches  in  the 
highway.  Territorial  Laws,  Vol. 
2,  p.  325  (1827),  made  overseer  of 
highways  act  as  drain  commis- 
sioner in  constructing  drains  on 
farm  lines.  This  act,  with  amend- 
ments, remained  in  force  until 
1857.  Laws  of  1857.  p.  431,  made 
it  the  duty  of  the  highway 
officers,  whenever  a  drain  was 
laid  in  the  highway,  to  keep  the 
same  free  from  obstructions. 
This  was  repealed  in  1861.  Laws 
of  1859.  p.  1064,  made  highway 
commissioners  ex  oMcio  township 
drain  commissioners,  and  with 
amendments,  continued  in  force 
until  1875.  Laws  of  1861,  p.  453, 


repealed  the  prior  county  drain 
laws  of  1857  and  1859,  and  pro- 
vided that  "drains  may  be  laid 
along  or  upon  any  public  road," 
placing  them  under  the  care  of 
the  overseers  of  highways  when 
constructed.  This  was  repealed 
in  1869.  Laws  of  1869,  Act  No. 
70.  §14,  a  county  drain  act,  pro- 
vides, "drains  may  be  laid  along, 
within  the  limits  of.  or  across  any 
highway,"  and  required  the  over- 
seer of  highways  to  keep  the 
drain  clean.  Act  No.  169  of 
Laws  of  1871,  §14,  a  new  county 
drain  law.  has  the  same  provision. 
Laws  of  1875,  Act  No.  140,  pro- 
vides, "Water  courses  may  be 
established,  ditches  or  drains 
located  along,  within  the  limits  of, 
or  across  any  public  highway," 
and  were  to  be  kept  clean  by  the 
highway  officers.  Laws  of  1881, 
Act.  No.  269,  contained  similar 
provisions.  Laws  of  1885,  Act 


Ill  IlKiHWAV    AM)    Sl'Kl-A(K    \\ATKRS 

much  discretion  in  deciding  how  and  where  he  will  expend 
highway  labor;  but  it  is  a  discretion  limited  by  the  rights  of 
individuals,  and  when  he  invades  those  rights  he  become^ 
liable.  When  he  is  liable  for  a  lawless  act,  all  of  his 
assistants  are  liable  with  him  for  the  consequent  injury. 
Absence  of  bad  faith  can  never  excuse  a  trespass,  though 
the  existence  of  bad  faith  may  sometimes  aggravate  it-. 

It  has  been  the  settled  policy  of  the  state  to  permit  the 
use  of  highways  for  drainage  purposes  as  appears  from  the 
legislation  upon  the  subject  from  1819,  when  Michigan  was 
a  territory,  to  the  present  time.  It  is  within  the  power  of 
the  legislature  to  permit  this,  and  not  confine  such  work 
exclusively  to  those  officers  having  the  highway  in  charge3. 
The  township  is  not  bound  to  erect  railings  or  barriers 
along  the  banks  of  drain  in  the  highway.  The  statutory 
requirement  does  not  apply  to  artificial  drains4. 

£306.     Private  Drains  in  Highways. 

Some  jurisdictions  hold  that  a  municipality  cannot  grant 
a  vested  right  in  a  private  owner  to  construct  a  private  sewer 
in  a  public  street;  and  that  such  attempted  grant  is  only  a 
license,  revocable  at  pleasure,  because  the  municipality  does 
not  own  the  fee  of  the  streets,  and  can  make  no  binding  grant 

• 

No.  227,  819,  (3  H.  S.  §1740d3),  way  under  the  charge  of  the  over- 
provides,  "drains  may  be  laid  seer  of  highways, 
along  and  within  the  limits  of,  or  2.  Cubit  v.  O'Dett,  51  Mich, 
across  any  public  highway;  pro-  347.  351.  See  Chapel  v.  Smith, 
vidcd,  when  it  is  proposed  to  con-  80  Mich.  100,  where  the  a««is'a-» 
struct  a  drain  in  whole  or  in  part  to  a  drain  commissioner  was  he.d 
along  a  public  highway,"  a  right  not  liable  in  trespass  on  the  case, 
of  way  shall  he  obtained  as  in  3.  Kiley  v.  Bond,  114  Mich, 
other  cases.  All  of  the  drain  con-  447 ;  Conrad  v.  Smith,  32  Mich, 
structed  in  the  highway  is  placed  429. 

under  the  care  of  the  overseer  of  4.    Kiley    v.    Bond,    114    Mich, 

highways.    Laws  of  1897,  Act  No.  447;     Delapp-   v.     Beckwith.     114 

254,    C.   L.   §4336.  omits  the  pro-  Mich.  394. 
vision  placing  drains  in  the  high- 


§  306  THE  LAW  OF  TAXATION  442 

that  might  later  interfere  with  a  public  use5.  Michigan 
holds  the  contrary  doctrine,  that  a  grant  of  a  right  for  such 
a  purpose  conveys  a  vested  right,  which  will  be  protected  by 
injunction.  Where  the  act  of  the  city  was  in  passing  an 
ordinance  forbidding  the  use  of  such  sewer,  and  an  arrest 
for  the  violation  of  such  ordinance,  injunction  alone  will  lie, 
the  passage  of. the  ordinance  being  a  governmental  act  for 
which  an  action  at  law  would  not  lie6.  As  against  a  third 
party,  the  municipality,  under  proper  restrictions,  may  grant 
a  vested  right  to  a  private  citizen  to  construct  a  private  sewer 
in  a  public  street.  The  idea  that  such  a  right  cannot  be 
granted  is  based  upon  the  theory  that  the  fee  of  the  street 
is  in  the  private  owner  and  that  the  laying  of  a  private  sewer 
or  drain  pipe  is  an  invasion  of  his  right  as  owner  of  the  land. 
The  fallaciousness  of  this  proposition  is  apparent  when  it  is 
considered  that  the  right  of  the  public  in  the  streets  of  cities, 
boroughs  and  towns  is  far  more  extensive  than  the  rights  to 
use  the  surface  of  the  land  for  the  purpose  of  passage.  There 
is  no  good  reason  for  holding  such  a  doctrine.  The  streets 
and  alleys  of  cities,  towns  and  borroughs  are  under  the  con- 
trol and  direction  of  these  municipalities  and  they  have  all 
of  the  power  over  them  that  can  lawfully  exist.  They  are 
the  universally  recognized  channels  of  communication  be- 
tween the  different  parts  of  the  municipal  territory,  and  no 
private  interest  in  or  ownership  of  the  subsoil  is  permitted  to 
interfere  with  the  free  use  of  both  the  surface  and  the  sub- 
soil by  the  municipal  authorities  or  their  delegated  sub- 
stitutes. The  municipal  authorities  use  them  for  all  public 
purposes;  and  if  the  use  permitted  to  a  private  individual  is 
of  the  same  kind  to  which  the  surface  or  subsoil  of  the  street 
may  be  devoted  by  the  municipality,  the  private  owner  can  no 

5.     Eddy  v.   Granger,   28  L.  R.          6.     Stevens    v.    Muskegon,    111 
A.  517  (R.  L).  Mich.  72,  74. 


44:{  UK; ii  WAY  AND  SURFACE  WATERS     §§307,308 

nio.e  object  in  the  one  cr.se  than  in  the  other7.  Neither  can 
the  municipality  destroy  'a  gutter  which  carries  off  the  water 
from  private  premises,  where  the  destruction  results  in  pre- 
cipitating water  on  .to  such  premises8. 

§307.     Private  Drains. 

A  license  to  dig  a  drain  may  be  revoked  at  pleasure9.  The 
same  rule  applies  to  a  ditch  dug  as  a  neighborhood  drain,  as 
to  other  watercourses,  if  dug  by  common  consent ;  and  where 
a  rail  fence  is  placed  across  such  a  drain,  and  settles  and 
obstructs  the  drain,  the  owner  is  not  liable  therefor10.  A 
right  of  drainage  through  the  lands  of  another  is  such  an 
interest  in  land  that  it  cannot  be  conveyed  by  parol11. 

<308.     Municipal  Liability. 

Where  a  municipality,  by  its  express  direction,  through 
its  governing  body,  causes  an  act  to  be  done  which  injuri- 
ously affects  a  private  land  owner  by  causing  an  unnat 
flow  of  water  upon  his  premises,  the  municipality  will  be 
held  liable.  It  is  very  manifest  from  a  reference  to  the  au- 
thorities that  they  recognize  in  municipal  corporations  no 
exemption  from  responsibility  where  the  injury  an  individual 
has  sustained  is  a  direct  injury  accomplished  by  a  corporate 
act  which  is  in  the  nature  of  a  trespass  upon  him.  The  right 
of  an  individual  to  the  occupation  and  enjoyment  of  his 
premises  is  exclusive,  and  the  public  authorities  have  no 
more  liberty  to  trespass  upon  it  than  has  a  private  individual. 
If  the  corporation  sends  persons  with  picks  and  spades  to  cut 

7.    Boyden      v.      Walkey.      113  175. 

Mich.  609,  612.  10.     Freeman      v.      Weeks.      45 

Morley  v.  Buchanan  Village.  Mich.  2.V5. 

124  Mich.  128.  11.     Schnltz    v.     Hoffman,     127 

9.     Hopkins  v.  Briggs,  41  Mich.  Mich.  276. 


§  309  THE  LAW  OF  TAXATION  444 

a  street  through  private  property  without  first  acquiring  the 
right  of  way,  it  is  liable  for  a  tort;  but  it  is  no  more  liable 
under  such  circumstances  than  when  it  pours  upon  such 
land  a  flood  of  water  by  a  public  sewer  so  constructed  that 
the  flooding  must  be  a  necessary  result.  The  one  is  no  more 
justifiable  and  no  more  an  actionable  wrong  than  the  other. 
Each  is  a  trespass,  and  in  each  instance  the  city  exceeds  its 
lawful  jurisdiction.  A  municipal  charter  never  gives,  and 
never  could  give,  authority  to  appropriate  the  freehold  of  a 
citizen  without  compensation,  whether  it  be  done  through 
an  actual  taking  of  it  for  streets  or  buildings,  or  by  flooding 
it  so  as  to  interfere  with  the  owner's  possession.  His  prop- 
erty right  is  appropriated  as  much  in  the  one  case  as  in  the 
other12.  A  municipality,  in  providing  a  system  of  drainage, 
must  use  due  caution  and  care  to  provide  a  reasonably 
efficacious  means  of  carrying  off  the  water  that  might 
reasonably  be  expected  to  accumulate;  and  when  it  has  not 
done  so,  and  premises  are  flooded,  the  city  will  be  liable13. 
The  fact  that  the  system  of  drainage  or  sewer  is  built  accord- 
ing to  a  plan  does  not  change  the  liability14. 

§309.     Drain  Out-Lets. 

A  drain  commissioner  cannot  lay  out  a  drain,  except  at 
his  peril,  without  furnishing  a  sufficient  outlet.  The  fact 
that  the  drain  as  laid  out  was  determined  necessary  by 
special  commissioners  is  no  defense  to  flooding  lower  owners. 
Although  there  may  once  have  been  a  sufficient  outlet,  by 
prescription,  for  the  drain  in  question,  yet  if  that  outlet  had 


12.     Ashley  v.   Port   Huron,   35  small  a  culvert,  and  increased  the 

Mich.    296,    301,    and    cases    cited.  natural  flow  of  water. 

Pennoyer     v.     Saginaw     City,     8  13.     Seaman     v.     Marshal,     116 

Mich.  534;  Rice  v.  Flint,  67  Mich.  Mich.  324. 

401;  Richards  v.  Ann  Arbor,  152  14.     Defer  v.  Detroit,  67  Mich. 

Mich.  15,  where  the  city  built  too  346. 


11.".  H  K;H  WAY  AND  SURFACE  WATERS 

been  stopped  up  for  any  considerable  time,  such  prescriptive 
right  is  lost.  Moreover,  although  the  dimensions  of  the 
drain  may  not  be  increased,  yet  if  the  drain  brings  an  in- 
creased flow  of  water  upon  the  lower  proprietor,  more  than 
the  prescriptive  right  permitted,  the  drain  commissioner  will 
be  personally  liable15.  When  taken  in  time,  the  commis- 
sioner will  be  restrained  from  constructing  a  drain  without 
a  proper  outlet16.  A  private  owner,  even  with  the  consent 
of  the  drain  commissioner,  has  no  right  to  enter  other 
premises  than  his  own  to  clean  out  a  drain,  except  under 
proceedings  had  by  the  statutory  petition17.  Where  a  drain 
outlet  as  originally  constructed  floods  a  lower  proprietor, 
but,  after  suit  is  commenced,  the  defendants  remedy  the 
defect,  an  action  by  injunction  will  not  lie,  but  the  parties 
will  be  left  to  their  remedy  at  law18.  The  commissioner 
cannot  construct  a  drain  that  will  flood  lands  below  the  out- 
let. In  such  a  case,  injunctioa  will  lie19. 

§310.     Bridges  and  Culverts. 

If,  by  the  construction  of  a  drain  in  the  highway  for  road 
purposes,  a  bridge  or  culvert  is  necessary  for  the  private 
owner,  he  may  make  one  at  his  own  expense  because  he  has 
a  right  of  access  to  the  public  street.  In  so  doing,  he  has 
no  right  to  wilfully  obstruct  the  ditch  or  highway,  his  rights 
as  a  private  owner  being  subordinate  to  the  public  right  of 
constructing  and  maintaining  such  ditch  and  keeping  the 
highway  in  repair20.  A  township  may  have  an  injunction  to 

15.    Chapel  v.  Smith.  80  Mich.  H>.     Surafield     v.     Smith,     153 

100,114.  Mich.  270;  Keuerstein  v.  Richter, 

ifi.     Bruggink    v.    Thomas,    125  15  L.   N.  751. 

Mich.  9.  where  the  principle  is  recognized 

17.     Freed   v.   Stuart,   13  .L.   N.  hut   an   injunction  denied   on   the 

050.  147  Mich.  31.  facts. 

1H.     Perry   v.   Reed,  "147    Mich.  20.     Highway   Commissioner   v. 

146.  Ely,  54  Mich.  173,  178. 


§§  311,  312  THE  LAW  OF  TAXATION  44'J 

restrain  the  deepening  and  widening  of  a  drain  whereby 
unusual  quantities  of  water  will  be  brought  down  at  once, 
endangering  its  culverts  and  bridges.  If  such  deepening 
and  widening  has  been  completed,  an  order  will  issue  com- 
pelling the  drain  commissioner  to  dam  up  the  drain  so  as  to 
make  it,  or  restrict  it,  to  its  original  capacity.  The  com- 
missioner may  clean  out  drains  to  their  original  capacity 
but  cannot  go  further  if  it  does  damage.  The  township  can- 
not recover  damages  for  bridges  and  culverts  destroyed  in 
an  action  of  this  kind;  the  action  must  be  brought  by  the 
overseer  of  highways21. 

1 311.     Obstructing  Highway  Drains. 

Under  the  statute,  the  highway  commissioner  may  sue  an 
individual  for  the  penalty  provided,  for  wilfully  obstruct- 
ing a  ditch  in  the  highway.  In  such  case,  the  intent  of  the 
defendant  is  proven  by  the  preponderance  of  the  evidence-2. 
The  defendant,  in  such  an  action,  cannot  plead  that  the 
drain  was  not  legally  laid  out.  The  court,  however,  cannot 
direct  a  verdict  for  more  than  six  cents,  it  being  for  the 
jury  to  determine  whether  all,  or  a  part,  of  the  penalty  shall 
be  imposed23. 

§312.     Diversion  of  System. 

A  stream  may  be  diverted  from  its  course  if  returned  to 
its  original  channel  before  it  leaves  the  premises  of  the 
owner  diverting  it;  but  he  cannot  diminish  the  flow  to  the 
injury  of  the  lower  proprietor24.  The  riparian  owner  has 

21.  Merritt  Twp.  v.  Harp,  141  23.     Hines  v.  Darling,  99  Mich. 
Mich.  233.  47. 

22.  3.  H.  S.  §1403 ;  C.  L.  §4157.  24.     Pettibone      v.      Smith.      37 
Highway  Commissioner  v.  Ely,  54  Mich.  ,575 ;  Rummell  v.  Lamb,  100 
Mich.    173,    179;    Highway    Com-  Mich.    424:    Hilliker   v.    Coleman, 
missioner  v.    Sperling.    120   Mich.  "3  Mich.  170. 

493. 


447  HIGHWAY  AND  SURFACE  WATERS       §5j  '•'•  1  '•'>.  '•'>  1  1 

the  right  of  drainage  into  a  stream  opposite,  and  the  right 
to  the  natural  flow  of  the  stream25. 

£313.     Riparian  Rights  in  Lakes. 

The  owner  of  a  mill  pond,  or  lake  supplying  his  mill,  may 
enjoin  the  construction  of  a  drain  which  will  lower  the  level 
of  the  lake26.  Moreover,  the  right  to  construct  a  drain  does 
not  extend  to  the  construction  of  a  ditch  that  will  impair  the 
navigability  of  any  navigable  river  or  lake.  The  drain  com- 
missioner is  without  jurisdiction  in  such  a  case-7.  A  tem- 
porary injunction  will  be  granted  to  a  holder  of  land  under 
a  contract  to  restrain  threatened  flooding28. 

§314.     Surface  Water.     Lower  Proprietor. 

Whatever  may  be  the  rights  of  adjoining  proprietors  as 
to  the  use  and  diversion  of  water,  there  is  no  right  in  any 
one,  by  raising  artificial  obstructions,  to  flood  his  neighbor's 
land  by  stopping  the  escape  of  water  that  cannot  otherwise 
flow  off29.  A  sag  hole  or  ravine,  having  no  defined  banks  or 
bed.  or  source  of  permanent  supply  of  water,  is  not  governed 
by  the  rules  of  natural  watercourses.  An  upper  proprietor 
has  no  right  to  collect  and  discharge  his  water  into  such 
ravine  as  in  a  natural  watercourse,  but  must  IDC  governed  by 
the  law  relating  to  the  flow  and  disposition  of  surface  water. 
The  upper  owner  would  have  the  right,  in  the  interests  of 
good  husbandry,  in  the  good  faith,  improvement  and  tillage 
of  his  farm,  to  fill  up  sag  holes  on  his  own  land  so  that  no 
water  would  accumulate  or  stay  therein,  even  if  the  water 

95.    Treat    v.    Bates,    27    Mich.       419;  C.  L.  §4339. 
390.  28.     Emery    v.    Circuit    Judge. 

26.  Stock    v.    Jefferson    Twp.,      138  Mich.  542. 

114    Mich.    357;    Hyatt    v.    Albro,          29.     Boyd  v.  Conklin.  !>4  Mich. 
121    Mich.  83S.  5*3.  591. 

27.  Cole    v.    Dohv.    137    Mich. 


§  315  THE  LAW  OF  TAXATION  448 

arising  from  rain  fall  or  melting  snow  should  thereby,  in 
natural  processes,  find  its  way  into  the  ravine  of  the  lower 
owner  and  incidentally  increase  the  flow  thereon.  But  he 
cannot,  by  artificial  drains,  collect  the  waters  of  stagnant 
pools,  sag  holes,  basins,  or  ponds  upon  his  premises  and  cast 
them  in  a  body  upon  the  proprietor  below  to  his  injury30. 
It  is  error  to  lay  down  the  broad  rule  that  an  upper  proprietor 
may,  by  artificial  drains,  cast  all  of  his  natural  drainage,  at 
once,  upon  the  lower  proprietor.  It  may  be  cast  enough 
more  rapidly  to  cause  serious  damage  to  the  lower  pro- 
prietor31. Where  a  lower  proprietor  is  in  one  county  and  is 
flooded  by  the  upper  proprietor  in  another  county,  a  bill  will 
lie  in  the  county  where  the  land  is  flooded,  to  restrain  such 
upper  proprietor32.  Where  the  upper  proprietor  unlawfully 
casts  upon  the  one  below,  more  water  than  had  been 
accustomed  to  flow  there,  the  lower  proprietor  has  a  right 
to  dam  back  such  water  though  in  so  doing  he  necessarily 
obstructs  the  flow  of  water  that  would  naturally  come  upon 
him33.  The  .upper  proprietor  may  fill  up  his  sag  holes,  but 
he  cannot  collect  the  water  of  pools,  holes  or  ponds  and 
cart  it  in  a  body  upon  the  lower  estate34. 

§315.     Percolating  Waters. 

The  movements  of  sub-surface  waters  are  commonly  so 
obscure  that  rights  in  or  respecting  them  cannot  well  be  pre- 
served. They  do  not  often  have  a  well  defined  channel ;  and 
it  is  not  easy  in  many  cases  to  determine  in  what  direction 


30.  Gregory  v.  Bush,  64  Mich.  196. 

37,    42;     Page    v.    Huckins,    150  32.     Davis  v.  Frankenlust  Twp., 

Mich.  103.     Leidlein  v.  Meyer,  95  118  Mich.  494. 

Mich.  586;  Horton  v.  Sullivan,  97  33.     O'Connor    v.    Hogan,    140 

Mich.  282.  Mich.  613. 

31.  Breen  v.   Hyde,   130   Mich.  34.     Lannstein  v.  Lannstein,  14 
1,  5;   Osten  v.  Jerome,  93  Mich.  L.  N.  773,  150  Mich.  524. 


H'.t  II I  HGWAY    AND   SURFACE   WATERS  i!5 

their  movements  tend.  In  some  cases  a  new  well  at  a  con- 
siderable distance  from  the  old  one  may  withdraw  the  water 
from  the  other  and  destroy  it ;  while  in  other  cases,  in  which 
the  same  result  would  seem  more  likely,  there  is  no  percepti- 
ble influence.  It  is  in  view  of  these  difficulties  that  the  rule 
of  law  has  become  established  that  owners  of  the  soil  have 
no  rights  in  subsurface  waters  not  running  in  well  defined 
channels,  as  against  their  neighbors,  who  may  withdraw  them 
by  wells  or  other  excavations35.  In  Pennsylvania,  the  right 
to  divert  sub-surface  water  is  limited  to  those  cases  where 
the  destruction  of  the  well  or  spring  could  not  be  reasonably 
foreseen  or  avoided  by  the  use  of  ordinary  care38.  The 
owner  of  the  soil  has  the  same  right  to  a  well  defined  flow  of 
subterrean  water  as  he  has  to  the  surface  water  on  his  prem- 
ises. The  difficulty  in  preserving  these  rights  lies  not  in  the 
principle,  but  in  the  necessary  proofs  to  substantiate  them37. 
A  stream  whose  course  can  only  be  ascertained  by  excavating 
is  not  so  well  defined  as  to  certainty  as  to  come  within  the 
rule  of  protection.  In  the  case  of  a  well  sunk  by  a  proprietor 
on  his  own  land,  where  the  water  which  feeds  it  does  not 
flow  openly  thereto,  but  through  the  hidden  veins  of  the 
earth  beneath  the  surface,  no  proprietor  can  tell  what  portion 
of  the  water  is  taken  from  beneath  his  own  premises  and 
what  portion  from  an  adjoining  proprietor.  In  fact,  until 
the  well  has  been  dug,  there  cannot  be  said  to  have  been  any 
flow  at  all38. 

35.    Upjohn  v.   Richland   Twp.,  36.     Collins  v.  Chartiers  Valley 

48   Mich.   542,   549 ;    Greenleaf   v.  Gas.  Co.,  131  Pa.  St.  143.  and  130 

Francis,    18    Pick.    117;    Bliss    v.  Pa.  St.  Ill;  Wheatley  v.  Batigh, 

Greeley,  45  N.  Y.  671;  Roath  v.  25     Pa.     St.    528;     Haldeman    v. 

Driscoll,  20  Conn.  533;   Chatfield  Bruckert,  45  Pa.  St.  514. 

v.    Wilson,   28   Vt.   49;    Chase   v.  37.     Cross  v.  Kitts.  69  Cal.  27; 

Silverstone,  62  Me  175;  Frazier  Shively  v.  Hume,  10  Or.  76. 

v.  Brown,  12  Ohio  St.  294;  New  3S.    Acton  v.  Blundell,  12  M.  & 

Albany,  etc.,  Ry.  v.   Peterson,  14  W.  324;   Chasemore  v.  Richards. 

Ind.   112;   Coleman   v.   Chadwick,  7  H.  L.  Cas.  349.     But  see  Bur- 

SO  Pa.  St.  81 ;  Hanson  -v.  McCue.  roughs  v.  Saterlee,  67  la.  349. 
42  Cal.  303. 
(29) 


PART  THREE 


SPECIAL  ASSESSMENTS 


CHAPTER  XX. 
GENERAL  POWERS  AND  PRELIMINARIES. 

§316.  Power  to  Levy   Special  Assessments. 

§317.  The  Tax  Must  be  for  the  Purpose  Named. 

§318.  The  Petition. 

§319.  The  Vote. 

§320.  Ordinances. 

§321.  The  Determination. 

Form   of   Determination. 

Form  of  Determination  after  Hearing  Objections. 

§322.  Particulars  of  Determination. 

§323.  The  Jury. 

§324.  Comprehensiveness  of  Terms. 

§325.  Power  to  Pave. 

§326.  Power  to  Make  Sewers. 

§327.  Power  to  Build  Sidewalks. 

§328.  Reasonable  Time  to  Build. 

§329.  Power  In  Re  Public  Parks  and  Water  Works. 

§330.  Limitations  of  Tax. 

§331.  Board  of  Public  Works. 

§332.  Board  of  Estimates. 

§333.  Board  of  Assessors. 

Form  of  Instructions  to  Assessors. 

8334.  Determining  Amount  to  be  paid  by  City. 

§335.  Plans  and  Specifications. 

§336.  Use  of  Patented  Articles. 

6337.  Estimates. 

§338.  Notice  of  Proposed  Improvement. 

§339.  Notice  of  Assessment. 

Form  of  Notice  of  Review  of  Assessments. 

§340.  Notice  for  Bids. 

§341.  Publication  of  Notice. 

§342.  Service  of  Notice  and  Return. 

§343.  Costs  and  Expenses. 

§316.     Power  to  Levy  Special  Assessments. 

These  assessments  are  levied  under  a  public  law,  by  a 
municipal  corporation,  created  for  local  but  public  purposes, 


I'.l  GENERAL  POWERS  AND  PRELIMINARIES 


and  the  proceeds  of  the  assessment  are  devoted  to  a  particu- 
lar public  purpose.  The  common  council  have  power  to  levy 
a  tax  upon  the  whole  city  for  paving  all  streets  within  its 
boundaries  ;  and  the  constitution  would  sanction  the  taxation 
of  each  ward  for  all  of  the  expenses  of  all  improvements  in 
it.  There  is,  therefore,  no  constitutional  difficulty  in  assess- 
ing a  smaller  district  than  the  ward  for  the  expense  of  the 
improvements  within  it.  The  constitution,  however,  must 
be  conceded  to  enjoin  a  just  principle  of  equality  in  regard 
to  all  public  burdens,  and  prescribes  as  a  limit  to  the  taxing 
power,  that  common  burdens  should  be  sustained  by  com- 
mon contributions,  and  regulated  by  some  fixed,  general 
rule,  and  apportioned  according  to  some  uniform  ratio  of 
equality1.  The  distinction  between  taxation  and  eminent 
domain  is  this  :  Taxation  exacts  money  or  services  from  in- 
dividuals, as  and  for  their  respective  shares  of  contribution 
to  any  public  burden.  Private  property  taken  for  public  use 
by  right  of  eminent  domain  is  taken,  not  as  the  owners  share 
of  contribution  to  a  public  burden,  but  as  so  much  beyond 
his  share.  Special  compensation  is  therefore  to  be  made  in 
the  latter  case  because  the  government  is  a  debtor  for  the 
property  so  taken;  but  not  m  the  former,  because  the  pay- 
ment of  taxes  is  a  duty,  and  creates  no  obligation  to  pay 
otherwise  than  in  the  proper  application  of  the  tax.  Again, 
taxation  operates  upon  a  community,  or  upon  a  class  of  per- 
sons in  a  community,  and  by  some  rule  of  apportionment. 
The  exercise  of  eminent  domain  operates  upon  an  individual 
and  without  reference  to  the  amount  or  value  exacted  from 
any  other  individual,  or  class  of  individuals*. 

!.    Williams  v.  Detroit,  2  Mich.      Mich.  274.  280;   People  v.  Mayor 
560,  569.  of  Brooklyn.  4  Comst.  423;  Motz 

2.    Woodbridge     v.     Detroit,    8      v.  Detroit,  18  Mich.  495,  522. 


§  316  THE  LAW  OF  TAXATION  452 

Taxation,  as  a  general  thing,  can  only  be  justified  for  a 
public  purpose  and  as  affecting  some  well  defined  class  or 
community  of  the  public.  It  must  operate  upon  a  community 
or  a  class,  and  by  some  reasonable  rule  or  apportionment,  by 
which  the  amount  required  to  be  paid  by  one  person  or  piece 
of  property  shall  bear  some  relation  to  the  amount  to  be 
paid  by  another.  The  improvement  of  private  property  is 
no  part  of  the  object  of  government,  and  therefore,  if  pri- 
vate property  receives,  incidentally,  a  benefit  by  the  public 
use  of  that  taken,  such  benefit  furnishes  no  just  ground  or 
correct  basis  for  taxation3.  Article  XIV  of  the  constitution, 
§§11,  12  and  13,  providing  that  there  shall  be  a  uniform 
rule  of  taxation,  that  property  shall  be  assessed  at  its  cash 
value,  that  the  legislature  shall  provide  for  the  equalization 
of  taxes  by  a  state  board,  refers  only  to  the  state,  county 
and  municipal  taxes  for  municipal  government.  Taxes  for 
purely  local  public  improvements  are  not  mentioned  in  the 
constitution,  nor  is  it  necessary  that  they  should  be  to  give 
the  legislature  power  over  them.  The  power  to  impose  and 
collect  such  taxes,  like  all  other  legislative  power  not  men- 
tioned in  the  constitution,  is  plenary,  and  in  the  exercise  of 
it  is  subject  to  legislative  discretion  only4.  Local  assess 
ments  for  the  improvements  of  the  streets  are  made  in  the 
exercise  of  the  power  of  taxation,  and  cannot  be  justified 
on  the  grounds  of  being  mere  regulations  of  police;  and  are 
consequently  subject  to  the  general  principles  of  taxation6. 
Special  assessments  do  not  constitute  the  taking  of  private 
property  under  the  power  of  eminent  domain;  they  are  an 
exercise  of  the  taxing  power6.  In  conferring  the  power  to 

3.  Chaffee's   Appeal,    56    Mich.  5.     Motz    v.    Detroit.    18    Mich. 
244,  259.  495,   523. 

4.  Woodbridge    v.    Detroit,    8  6.    Roberts  v.  Smith,  115  Mich. 
Mich.  274,  280;   People  v.  Mayor  5,  8. 

of  Brooklyn,  4  Comst.  423. 


I  53  GENERAL  POWERS  AND  PRELIMINARIES  >  '•'>  1  « 

levy  a  special  assessment,  the  legislature  usually  enacts  the 
rule  by  which  the  assessments  shall  be  apportioned;  but  it 
may  leave  to  the  council  to  prescribe,  by  law  or  ordinance, 
the  mode  of  assessing,  levying  and  collecting  such  tax7. 

§317.     The  Tax  Must  be  for  the  Purpose  Named. 

The  council  cannot  construct  a  sewer  under  the  guise  of 
grading  and  graveling  a  street.  When  action  is  taken  to  lay 
out,  grade  and  pave  a  street,  the  construction  of  a  sewer  is 
not  included  within  those  terms.  The  district  benefited  by  a 
sewer  is  generally  different  from  the  district  benefited  by  a 
highway.  The  inhabitants  of  a  city  are  entitled  to  a  hearing 
on  each  of  these  improvements,  and  neither  can  be  included 
in  the  other.  One  may  be  necessary  and  the  other  may  not. 
Such  an  assessment  for  a  double  purpose  is  void8.  The 
necessary  drainage  for  the  pavement,  however,  which  may 
be  called  a  storm  sewer,  may  be  built  without  being  men- 
tioned in  the  determination  to  pave9.  Upon  the  same  prin- 
ciple, a  determination  to  pave  will  be  deemed  to  include  the 
necessary  grading,  leveling,  curbing,  gutters  and  cross- 
walks ;  and  money  used  for  such  purposes  will  not  be  deemed 
a  diversion  of  the  tax10.  Where  bonds  are  issued,  in  reality 
for  a  bonus,  but  ostensibly  to  purchase  a  park,  they  will  be 
illegal  and  void  in  the  hands  of  a  party  knowing  the  facts, 
but  will  be  protected  in  the  hands  of  an  innocent  purchaser 
for  value  if  they  contain  the  proper  recitals11.  The  de- 
termination of  the  council  must,  in  fact,  describe -the  pro- 

7.  Whitney     v.      Hudson,     69      Saginaw,  87  Mich.  439. 

Mich.  189,  197.  10.    Williams      v.      Detroit,     2 

8.  Peck  v.  Grand   Rapids,  125  Mich.     560,     577 ;     Cummings    v. 
Mich.  416.  Grand  Rapids,  46  Mich.  150,  157. 

9.  Williams  v.  Detroit,  2  Mich.  11.     Schmidt  v.   Frankfort,   131 
560;  Gates  v.  Grand  Rapids,  134  Mich.  197;  Thompson  v.  Mecosta 
Mich.  196 ;  Parsons  v.  Grand  Rap-  Village,  127  Mich.  522. 

ids,    141    Mich.    467;    Davies    v. 


§  317  THE  LAW  OF  TAXATION  454 

posed  improvement.  Upon  the  plea  of  improving  or  repair- 
ing a  street,  it  cannot  build  a  sewer  and  levy  an  assessment 
therefor  upon  private  property12.  It  is  not  competent  for  the 
council  to  order  the  construction  of  two  separate  and  distinct 
improvements  and  provide  that  the  expenses  be  met  by  a 
single  assessment  to  be  levied  upon  abutting  owners13.  The 
fact,  however,  that  one  street  may  have  different  names  for 
different  portions  of  it,  does  not  constitute  a  work  embrac- 
ing the  whole  street  separate  and  distinct  works  for  each 
part  of  the  street  having  a  different  name.  The  unity  of 
the  work  as  a  whole  must  determine  the  right  to  deal  with 
it,  and  not  the  diversity  of  names  that  may  be  given  to 
various  parts  of  it14.  Several  streets,  however,  may  be 
paved  in  one  general  improvement,  though  the  pavement  is 
of  different  widths,  there  being  separate  estimates  of  the 
cost  of  each  street.  "The  improvement  is  one  and  the  same, 
but  it  does  not  follow  that  each  piece  of  property  fronting 
on  different  streets  should  pay  the  same  amount  per  foot. 
It  is  competent  for  a  city  to  include  more  than  one  street  in 
a  local  improvement  of  this  kind;  and  the  fact  that  the 
streets  are  of  different  widths  does  not  affect  the  right"15. 
The  legislature  may  authorize  the  raising  of  a  tax  for  a 
special  improvement;  and  it  will  be  presumed  that  it  was 
intended  that  the  funds  should  be  disbursed  by  the  regular 
ofBcers.  Where  the  act  provides  that  certain  special  officers 
shall  disburse  the  money  and  the  title  of  the  act  is  silent  in 
relation  thereto,  the  act  will  be  held  unconstitutional16. 

12.  Clay   v.    Grand   Rapids,    60      included   in  paving. 

Mich.  451,   458.  15.     Haley    v.    Alton,    152    111. 

13.  Arnold   v.    Cambridge,    106  113;    Adams    Co.    v.    Quincy,    130 
Mass.  352,  cited  in  46  Mich.  150,  111.  566;  Springfield  v.  Green,  120 
155.  111.  269. 

14.  Cummings   v.    Grand    Rap-  16.     McDonald    v.    Springwells, 
ids,    46    Mich.    150,    155;    holding  152  Mich.  28. 

that  branches  of  a  street  may  be 


455  GENERAL  POWERS  AND  I'KKLIMINAKIHS  >>  .'51s, 

§318.     The  Petition. 

A  guardian  or  an  administrator  cannot,  as  a  freeholder, 
representing  his  estate,  sign  a  petition  for  a  public  improve- 
ment. Where  the  husband  and  wife  own  land  jointly,  both 
must  sign,  as  the  signature  of  one  alone  is  of  no  effect.  The 
fact  of  whether  or  not  the  requisite  number  of  free-holders 
have  signed  a  petition  or  not,  may  be  shown  by  extraneous 
testimony.  It  would  seem  that  the  holder  of  a  land  contract, 
in  possession  of  the  premises,  has  such  an  equitable  interest 
in  the  fee  that  he  would  be  deemed  a  freeholder17.  Where 
the  statute  does  not  expressly  require  a  petition  as  a  basis 
for  starting  procedings  for  a  public  improvement,  a  land 
owner  cannot  be  heard  to  object  that  the  petition  presented 
was  too  indefinite18. 

£319.     The  Vote. 

Where  the  charter  requires  that  the  aye  and  nay  vote  shall 
be  had  upon  any  proposition,  it  is  not  sufficient  that  the 
record  show  that  all  members  of  the  council  were  present  at 
the  opening  of  the  meeting,  and  that  the  resolution  in  ques- 
tion, when  brought  before  the  council,  was  unanimously 
carried.  The  record  must  distinctly  show  how  each  mem- 
ber voted.  There  is  no  presumption  that  all  of  the  members 
present  at  roll  call  remained  until  any  particular  resolution 
was  voted  upon,  or  that  every  member  voted  upon  the  reso- 
lution. The  actual  attendance  of  the  members  upon  any 
meeting  will  frequently  be  found  to  change  from  hour  to 
hour,  so  that  a  record  that  a  vote  was  unanimous  would  be 
slight  evidence  that  any  particular  member  present  at  roll 


17.     See  5250,  supra.       Auditor         IS.     Auditor    General    v.    Hoff- 
General  v.  Fisher,  84  Mich.  128.          man,  132  Mich.  198. 


§  319  THE  LAW  OF  TAXATION  456 

call  voted  for  it,  or  that  a  member  not  present  at  roll  call 
did  not  vote  for  it,  or  that  a  member  present  was  not  excused 
from  voting,  or  did  not  abstain  from  voting.  Such  a  statute 
is  designed  to  fix  upon  each  member  who  takes  part  in  the 
proceedings  on  such  resolutions,  the  precise  share  of  respon- 
sibility which  he  ought  to  bear,  and  that  by  such  an  un- 
equivocal record  that  he  shall  never  be  able  to  deny  either 
his  participation  or  the  character  of  his  vote19.  The  fact 
that  an  alderman  is  interested  in  the  proposed  improvement, 
and  will  be  liable  to  an  assessment  thereon,  does  not  dis- 
qualify him  from  voting  upon  questions  relating  to  the  im- 
provement. Such  action  is  legislative  in  character,  and  the 
interest  of  an  alderman  therein  is  of  the  same  nature  with 
that  which  every  legislator  has  in  a  bill  he  votes  for,  which 
is  to  subject  his  property,  in  common  with  that  of  his  fel- 
low citizens,  to  taxation.  While  it  might  not  be  competent 
for  such  an  alderman  to  assist  in  making  the  assessment,  for 
all  other  purposes  he  would  be  qualified  to  act20.  The  de- 
termination of  the  necessity  of  the  improvement  and  the  con- 
firmation of  the  roll,  inasmuch  as  it  is  the  levy  of  a  tax,  re- 
quires a  two-thirds  vote  of  the  council.  Likewise,  a  recon- 
sideration of  such  a  resolution  by  less  than  that  two-thirds 
of  the  members  is  a  nullity21.  Where  the  council  is  com- 
posed of  six  trustees  and  a  mayor,  each  having  a  vote,  a  two- 
thirds  vote  to  levy  an  assessment  requires  the  vote  of  five 
of  such  members22.  Where  a  municipality  is  required  to 
determine  upon  the  details  of  a  work  and  then  submit  the 
question  to  the  electors,  the  board  may,  in  good  faith,  change 
the  grade  of  a  street  after  such  election23.  Where  the  char- 
is.  Steckert  v.  East  Saginaw,  lage,  69  Mich.  189,  201. 
22  Mich.  104,  109.  22.  Whitney  v.  Hudson  Vil- 

20.  Steckert   v.    East    Saginaw,      lage,  69  Mich.  189. 

22  Mich.   104,  112.  23.     Campau   v.    Grosse    Pointe 

21.  Whitney    v.    Hudson    Vil-      Board,  132  Mich.  365. 


457  «,  1   \1.K.\L  POWERS  AND  FRELIMINAK1 1  .".  '•'•''  1 

ter  requires  estimates  of  the  cost  of  a  work  to  be  prepared 
by  engineers;  and,  after  receiving  such  estimate,  does  not 
adopt  or  reject  it,  but  submits  a  lower  price  to  the  vote  of 
the  people,  the  vote  upon  such  question  will  be  void24. 
Where  the  charter  provides  that  the  council  may  rescind  an 
invalid  assessment,  it  may  do  so  by  a  majority  vote,  although 
it  requires  a  two-thirds  vote  to  levy  an  assessment35.  A 
charter  may  require  that  all  persons  voting  upon  a  proposed 
bond  issue,  shall  be  tax-paying  electors20. 

^  320.     Ordinances. 

The  successive  steps  prescribed  by  a  city  ordinance  to  be 
taken  to  levy  a  special  assessment  must  be  followed  by  the 
city  council27.  An  ordinance  is  not  violated  because  the 
clerk  nowhere  certifies  when  it  was  presented  to  the  mayor 
for  his  signature.  When  the  statute  provides  for  a  board  of 
assessors  there  is  no  necessity  for  an  ordinance  directing 
such  appointment28.  Where,  however,  the  statute  requires 
that  the  resolution  determining  the  necessity  of  the  improve- 
ment shall  be  approved  in  writing  by  the  mayor,  such  written 
approval  must  affirmatively  appear29. 

§321.     The  Determination. 

The  legislature  has  power  to  determine  whether  or  not  an 
improvement  is  a  public  necessity,  and  it  may  delegate  this 
power  to  the  local  municipalities ;  when  these  municipalities 
follow  the  rules  and  directions  laid  down  for  their  guidance 
by  the  legislature,  their  conclusion  is  final  and  will  not  be 

24.  Richards    v.    Bellaire    Vil-  27.     Williams      v.      Detroit.      2 
lage,  153  Mich.  560.  Mich.  560. 

25.  Townsend   v.   Manistee,   88  28.     Boehme    v.    Monroe    City, 
Mich.  408.  lOf,  Mich.  401. 

26.  Menton  v.  Cook,  147  Mich.  20.     Twiss   v.    Port    Huron.   63 
540.  Mich.  528,  532. 


§  321  THE  LAW  OF  TAXATION  458 

reviewed30.  Where  the  charter  provides  for  the  determina- 
tion of  the  necessity  of  an  improvement  by  the  council,  it 
must  be  formally  and  expressly  made.  It  will  not  be  in- 
ferred from  the  mere  ordering  of  the  improvement  made, 
nor  from  the  letting  of  the  contract  for  the  work.  It  may 
seem  that  the  legislature  has  been  over  particular  in  requir- 
ing from  the  council  an  express  preliminary  declaration  that 
they  deem  the  improvement  necessary,  when  the  fact  that 
they  order  it  to  be  made  is  evidence  that  such  is  their  opinion. 
It  is  evident,  however,  that  if  such  an  inference  can  be  drawn, 
then  this  charter  provision  is  idle,  and  the  provision  itself 
mere  surplusage.  The  court  has  no  authority  to  treat  any 
legislative  enactment  which  is  not  ambiguous  in  itself  and 
is  capable  of  reasonable  application,  as  so  far  unimportant 
that  it  is  matter  of  indifference  whether  it  is  complied  with 
or  not.  It  must  be  supposed  that  the  legislature  saw  suf- 
ficient reason  for  its  adoption,  and  intended  it  to  have  effect. 
It  is  often  the  case  that  some  portion  of  a  legislative  enact- 
ment prescribing  the  course  of  proceedings  to  be  pursued 
by  public  officials,  can  be  treated  as  directory  merely,  and 
not  mandatory ;  so  that  a  failure  to  strictly  comply  with  some 
part  of  its  directions  will  not  defeat  the  whole  proceedings. 
This  can  never  be  the  case,  however,  where  that  which  is 
required  to  be  done  is  in  the  nature  of  a  condition  precedent 
to  subsequent  action,  and  not  simply  a  step  in  the  course  of 
the  proceedings  prescribed  with  a  view  to  a  regular,  orderly 
and  prompt  transaction  of  the  business  in  the  progress  of 
which  such  step  is  to  be  taken31.  As  the  charter  and  ordi- 
nances, however,  declare  the  mode  in  which  the  expenses  of 
making  any  public  improvement  within  the  municipality  shall 

30.  Voigt  v.  Detroit,  123  Mich.      Mich.   39,  44;   White  v.  Saginaw, 
547.  67    Mich.   33,   41. 

31.  Hoyt  v.   East    Saginaw,   19 


•l.V.i  GENERAL  POWERS  AND  PRELIM1NAK1  §321 

be  assessed  and  collected,  and  point  out  the  property  to  be 
assessed,  no  formal  determination  is  necessary  unless  re- 
quired by  such  provisions;  and  when  it  is  not  required,  a 
determination  will  be  implied  from  the  making  of  a  con- 
tract for  the  improvement32.  Where  the  charter  requires 
that  the  portion  of  the  city  deemed  benefited  by  the  pro- 
posed improvement,  and  the  amount  to  be  paid  by  the  city 
at  large,  to  be  entered  upon  the  minutes  of  the  proceedings 
of  the  council,  such  determination  is  jurisdictional  to  the  levy 
of  the  tax.  The  council  cannot,  by  resolution,  change  the 
district,  nor  delegate  their  power  in  this  respect  to  commis- 
sioners. The  order  to  the  commissioners  should  specify  the 
principle  or  method  of  the  assessment;  and  in  the  absence 
of  any  directions,  there  is  no  presumption  that  the  assessment 
was  made  with  any  reference  to  benefits  or  advantages  which 
are  to  arise  from  the  improvement33.  The  language  of  char- 
ters is  sometimes  carelessly  drawn,  and  may  if  interpreted 
literally,  without  reference  to  legal  rules,  involve  extrava- 
gant powers.  All  such  language  should  be  so  construed,  if 
possible,  as  to  bring  the  powers  within  the  constitutional 
safeguards,  which  the  legislature  cannot  violate,  and  will 
not  be  supposed  to  design  violating34.  The  declaration  of 
the  necessity  of  a  public  work  does  not  necessarily  involve 
the  enumeration  of  the  details  of  such  improvement ;  but 
such  declaration,  although  general  in  character,  covers  the 
doing  of  whatever  is  deemed  or  found  to  be  necessary  in 
the  course  of  constructing  an  improvement  of  the  character 
designated,  as  the  building  of  a  necessary  drainage  sewer 
for  a  pavement35.  Where  a  charter  provides  that  no  paving 

32.  Williams      v.      Detroit,  2          35.     Davies     v.      Saginaw,     87 
Mich.  560,  576.  Mich.  439;  Baisch  v.  Grand  Rap- 

33.  Scofield     v.     Lansing,  17      ids,   84   Mich.   666;   but  see   Peck 
Mich.  437,  447.  v.   Grand   Rapids,   125    Mich.   416, 

34.  Gay   v.   Grand   Rapids,  60      and  S406.  supra,  for  a  restriction 
Mich.  451,  458.  upon  the   first  cases. 


§  321  THE  LAW  OF  TAXATION  460 

shall  be  done  within  one  year  after  a  sewer,  water  or  gas 
pipe  shall  have  been  laid  in  the  street  proposed  to  be  paved, 
and  the  laying  of  gas  or  water  pipe  is  not  under  the  control 
of  the  council,  the  provisions  as  to  these  latter  pipe  will  be 
held  inoperative,  as  being  inconsistent  with  the  other  pro- 
visions of  the  act,  and  inconsistent  with  the  proper  exercise 
of  the  general  powers  that  the  council  possesses  for  improv- 
ing the  streets36.  Where  the  statute  requires  that  the  resolu- 
tion determining  the  necessity  of  the  work  shall  be  approved 
in  writing  by  the  mayor,  the  lack  of  such  approval  is  fatal 
to  the  tax37.  Under  the  charter  of  Grand  Rapids  the  neces- 
sity of  an  improvement  need  not  be  submitted  to  the  elec- 
tors. The  council  may  let  the  contract  at  once,  and  later 
provide  for  a  review  of  the  assessment38.  Where  the  neces- 
sity is  to  be  determined  by  a  jury,  they  may  determine  the 
expenses  before  they  do  the  necessity  of  the  proposed  im- 
provement39. A  resolution  reciting  that  the  city  would  pro- 
cure a  bill  to  be  introduced  in  the  legislature  authorizing  the 
issue  of  bonds  to  build  a  bridge,  and  directing  plans,  specifi- 
cations and  estimates  to  be  made,  is  a  sufficient  determination 
under  the  charter  of  Saginaw40.  The  determination  to  make 
a  public  improvement  is  final,  and  not  open  to  collateral  at- 
tack except  for  fraud41. 

Form  of  Determination. 

Resolved  that  the  counsel  deems  ( the  paving  of 

street  from  the  west  side  of street  to  the 


36.  Goodwillie   v.   Detroit,   103  Mich.  454. 

Mich.  283,  239.  40.     Kundiger   v.    Saginaw,    132 

37.  Twiss    v.    Port    Huron,    63  Mich.  395,  402. 

Mich.  528,  532.  41.     Shimmons  v.  Saginaw,  104 

38.  Parsons   v.    Grand   Rapids.  Mich.  512 ;  Davies  v.  Saginaw,  87 
141  Mich.  467.  Mich.  439;  see  §455,  post. 

39.  Detroit      v.      Beecher,      75 


461  GENERAL  POWERS  AND  PRELIMINARIES 

east  side  of  street,  or  if  a  sewer,  that  it 

deems  the  construction  of  a  setter  on street, 

describing  the  sewer)  to  be  a  necessary  public  improve- 
ment; and  that  notice  be  given  that  this  counsel  intends  to 
make  the  public  improvement  as  shown  by  the  plans,  plat, 
diagram  and  specifications  now  on  file,  a<nd  intends  to  estab- 
lish a  special  assessment  district  therefor  as  shoivn  by  said 
plat  and  diagrams  now  on  file  with  the  clerk  of  this  counsel, 
and  that  said  special  assessment  district  be  assesed  and  pay 

per  cent  of  the  cost  of  such  improve tnent  (the  city 

to  pay  its  just  proportion  of  the  cost  of  intersections  of 
street  and  benefits  derived  by  parks  and  public  places),  the 
same  to  be  assessed  upon  the  lot,  land  and  premises  abut- 
ting such  proposed  improvements;  that  this  counsel  intends 
to  establish  a  special  assessment  district  comprised  of  the 
lot,  land  and  premises  and  streets  abutting  upon  such  pro- 
posed improvements  ax  shown  by  the  plat,  plans,  and  dia- 
gram and  specifications  now  on  file  with  the  said  clerk; 

that  it  intends  that  said  city  shall  pay per  cent  of 

the  cost  of  this  improvement,  together  with  its  just  propor- 
tion of  the  cost  of  the  intersections  of  the  streets,  and  of 
benefits  to  parks  and  public  places. 

Resolved,  that  counsel  meet  on  the day 

of at  the  council  chambers  at  7  o'clock 

P.  M.,  for  the  purpose  of  hearing  and  considering  any  ob- 
jection to  the  proposed  imprwement ,  or  to  the  several 
a  mounts  to  be  paid,  or  to  the  establishment  for  special  as- 
sessment district.  The  clerk  shall  give  notice  of  this  meet- 
ing by  publication  in  the for  two  weeks 

prior  thereto  (if  notice  is  given  by  printing,  the  two  above 
resolutions  headed,  Notice  of  hearing  of  objections  to  pro- 
posed improvement),  stating  the  time  at  which  said  reso- 
lutions were  passed,  signed  by  the  clerk,  u'ould  be  a  good 
notice.) 


§  321  THE  LAW  OF  TAXATION  462 

Form  of  Determination  After  Hearing  Objections. 

Whereas,  this  counsel  has  met  for  the  purpose  of  hearing 

objections  to  th<>  proposed  (paving  or  sewer;  on 

street,  and  to  the  formation  of  a  special  assessment  district 
therefor; 

And  Whereas,  after  listening  to  the  objections  of  all 
parties  desiring  to  present  the  same,  in  due  consideration 
being  had  thereon,  therefor, 

Resolved  that  the  plans,  plat,  diagram  and  specifications 

for  the  (paving  of  . . . street,  or  sewer  on  street) 

specifying  the  length  of  the  pavement  or  seiver  so  as  to  lo- 
cate it  particularly)  a<s  submitted  to  this  counsel,  is  a  neces- 
sary public  improvement;  and  it  is  ordered  that  the  im- 
provement as  aforesaid  be  made,  (that  such  street  be  paved 
with  vitrified  brick,  or  such  street  be  sewered  according  to 
the  plans  and  specifications  thereof)  with  the  necessary  grad- 
ing, curbing,  and  drainage  of  the  streets  specified,  as  shoivn 
by  the  map,  plans,  specifications  and  diagrams  of  such  im- 
provements, now  on  file  with  the  clerk  of  this  city,  said  plans, 
plats,  diagrams  specifications  are  hereby  approved  and 
adopted. 

It  is  further  resolved  that  the  special  assessment  district 
for  the  said  improvements  shall  be  the  lot  and  premises 
fronting  and  abutting  upon  the  improvement  shown  by  the 
map,  plans  and  diagrams  now  on  file  with  the  said  clerk,  and 

that  said  district  shall  be  known  (as  paving  district  No , 

or  sewer  district  No ). 

And  it  is  further  resolved  that per  cent  of  the  cost 

of  said  improvements  be  assessed  upon  said  special  assess- 

m-ent  district  No ,  the  said  city  of to  pay 

its  just  proportions  of  the  cost  of  the  intersection  of  street 
and  of  benefits  derived  by  public  parks  and  public  places,  the 


463  GENERAL  POWERS  AND  PRELIMINARIES 

same  to  be  assessed  upon  the  latid,  lots,  premises  abutting 

improvements;  and  tliat  the  said  city  of shall 

pay  ....  per  cent  of  the  cost  of  such  improvement,  together 
7»;i//i  its  just  proportion  of  the  cost  of  the  intersection  of 
streets  and  alleys,  and  of  benefits  derived  by  public  parks 
and  public  places. 

It  is  further  resolved  that  the  aforesaid  ....  per  cent  of 
such  cost  and  expense  shall  be  paid  by  special  assessment 
levied  according  to  benefits  derived  from  such  improve- 
ments upon  the  lots,  land  and  premises  abutting  upon  said 

improvement  and  included  within  special district 

No ,  and  that  the  estimate  of  costs  and  expenses 

of  said  improvement  now  on  file,  is  hereby  approved  and 
adopted. 

§322.     Particulars  of  Determination. 

The  determination  need  not  specifically  describe  the  details 
of  the  improvement.  A  specification  that  a  street  should  be 
paved  with  Nicholsen  pavement  between  specified  termini, 
will  be  deemed  to  include  all  necessary  incidentals,  such  as 
grading  and  the  setting  of  curbstones42.  Where  a  munici- 
pality is  authorized  to  spread  a  tax  either  by  foot  frontage, 
according  to  benefits,  or  by  land  values,  the  land  values  con- 
templated include  the  values  of  the  improvements  thereon; 
the  omission  of  the  values  of  the  improvements  is  fatal,  and 
a  jurisdictional  defect43.  Where  a  resolution  was  silent  as 
to  the  width  to  be  paved,  but  the  specifications  on  file  showed 
the  width  to  be  38  feet  but  before  the  contract  was  let  the 
specifications  were  changed  to  42  feet,  it  was  considered  an 
immaterial  change44.  Where  the  board  of  public  works  de- 

42.  Steckert   v.    East   Saginaw,      Mich.  251. 

22  Mich.  104,  113.  44.     Fuller     v.     Grand     Rapids, 

43.  Walker  v.  Ann  Arbor,  IIS      105   Mich.  529,  532. 


§  323  THE  LAW  OF  TAXATION  404 

termines  the  kind  of  paving  to  be  used  for  the  proposed  im- 
provement, and  estimates  a  lump  sum  as  its  cost,  it  is  suf- 
ficient to  set  the  council  in  motion.  The  estimates  are  for 
the  benefit  of  the  council.  The  council,  not  the  board  of 
public  works,  have  the  power  to  determine  the  cost,  dimen- 
sions and  general  character  of  the  improvement45.  Where 
the  statute  provides  that  the  cost  of  paving  street  intersec- 
tions shall  be  paid  by  the  city,  it  is  unnecessary  for  the  reso- 
lution to  so  recite,  as  it  will  be  presumed  that  the  tax  will 
be  levied  in  pursuance  of  the  statute.  Describing  the  dis- 
trict in  the  resolution  as  the  lots  and  parcels  of  land  front- 
ing on  a  certain  street  between  certain  points,  is  sufficient46. 
Where  the  charter  requires  a  council,  before  constructing  an 
improvement  costing  over  $3,000.00,  to  set  forth  its  inten- 
tion in  the  preceeding  annual  appropriation  bill,  the  fact 
that  the  pavement  costs  more  than  the  estimate  so  made  does 
not  invalidate  the  tax47.  The  determination  must  give  the 
approximate  location  of  the  improvement  and  of  the  property 
to  be  assessed  therefor48. 

§323.     The  Jury. 

The  functions  of  a  jury,  in  cases  of  public  improvements, 
mostly  fall  under  the  principles  of  eminent  domain.  Inci- 
dentally, the  question  of  how  far  a  tax  payer  who  is  not  a 
party  to  such  proceedings,  may  arise.  In  a  street  opening 
case,  a  tax  payer  cannot  object  to  proceedings  in  the  trial  or 
inquest.  He  is  not  entitled  to  be  made  a  party  thereto49. 

45.  Cass  Farm  Co.  v.  Detroit,       Muskegon,  152  Mich.  59. 

125  Mich.  426.  49.     Borgman    v.    Detroit,    102 

46.  Common  Council  v.  Board  Mich.  261;  Scotten  v.  Detroit,  106 
of    Public    Wks.,    87    Mich.    113;  Mich.    564;    Goodrich    v.    Detroit, 
Beniteau    v.    Detroit,    41    Mich.  123  Mich.  559;  Boussneur  v.  De- 
116.  troit,  153  Mich.  585,  holding  that 

47.  Auditor   General  v.   Chase,  the    determination    may   be    made 
132  Mich.  630.  by   one   jury   and   the    award   by 

48.  Thayer     Lumber     Co.     v.  another. 


GENERAL  POWERS  AND  PRELIMINARIES  $'•'>£ 4 

The  jury  necessarily  determines  the  necessity  of  the  taking 
of  private  property  for  the  use  of  the  proposed  improvement 
and  the  necessity  of  the  improvement,  and  under  some  char- 
ters, apportion  the  expenses  of  opening  a  street.  In  such  a 
case,  it  is  immaterial  whether  they  first  determine  the  ex- 
pense, or  the  necessity80.  Under  their  powers  as  a  jury  of 
inquest,  they  cannot  follow  their  own  caprice  as  to  the  value 
of  property  to  be  taken,  but  will  be  bound  by  the  testimony81. 
A  juror  who  has  been  summoned  and  acted  upon  a  jury  in  a 
former  proceeding  to  condemn  a  parcel  of  land,  but  disagreed 
and  were  discharged,  is  not  qualified  to  sit  upon  a  subse- 
quent panel  to  condemn  the  same  parcel,  and  may  be  chal- 
lenged for  cause.  When  he  denies  having  formed  an  opinion, 
and  a  party  interested  was  unaware  of  such  former  ser- 
vice, the  IOWCF  court  will  be  compelled  by  mandamus  to  set 
aside  the  verdict  rendered82. 

§324.     Comprehensiveness  of  Terms. 

The  term  "paving"  includes  the  necessary  work  incident 
to  paving.  Upon  this  principle,  a  determination  to  pave  in- 
cludes the  necessary  grading,  leveling,  curbing,  gutters  and 
cross-walks53.  The  statute  is  sufficiently  complied  with 
where  the  council  orders  a  street  paved  "with  Nicholson 
pavement."  This  will  include  such  incidental  work  as  ex- 
cavating and  setting  curb  stones84.  The  term  "paving"  will 
also  include  storm-water  sewers88,  but  it  will  not  include  the 
building  of  a  sewer  proper,  for  general  purposes86. 

50.  Detroit      v.      Beecher,      75      Grand  Rapids,  46  Mich.  150,  157. 
Mich.   454 ;     Powers    Appeal,    29         54.     Steckert     v.     Saginaw,     22 
Mich.    504,   510;    Scotten   v.    De-      Mich.  104. 

troit,  106  Mich.  564,  569.  55.     Davies      v.     Saginaw,     87 

51.  Chaffee's  Appeal,  56  Mich.      Mich.  439;  Gates  v.  Grand  Rap- 
244.  ids,    134    Mich.    96;    Parsons    v. 

52.  Hester    v.     Chambers,  84      Grand  Rapids,  141  Mich.  467. 
Mich.  562.  56.    Gay  v.   Grand   Rapids.  60 

53.  Williams     v.      Detroit,  2      Mich.  451 ;  Peck  v.  Grand  Rapids. 
Mich.     560,     577;     Cummings  v.      125  Mich.  416. 

(30) 


§325  THE  LAW  OF  TAXATION  466 

§325.     Power  to  Pave. 

The  power  to  pave  and  levy  the  expenses  upon  property 
benefited,  -having  been  once  exercised  by  the  municipality, 
does  not  become  functus  ofKcio.  This  power  is  not  limited 
to  keeping  a  pavement  in  repair,  but  in  regard  to  paving, 
grading,  or  otherwise  improving  its  streets,  is  a  continuing 
power.  While  this  power  may  be  abused,  still,  if  restraints 
or  limitations  are  placed  upon  it,  resort  must  be  had  to  the 
legislature  and  not  to  the  courts57.  The  occupation  of  a 
highway  by  a  plank  road  company,  which  collects  toll  for 
travel  thereon,  does  not  deprive  a  municipality  of  power  to 
pave  such  a  street.  The  municipality  is  only  divested  of  such 
rights  as  conflict  with  those  granted  to  the  company.  Such 
a  company  has  the  right  to  use  the  street  in  the  construction 
of  its  road,  and  to  the  exclusive  possession  of  the  street  only 
so  far  as  it  is  necessary  to  the  enjoyment  of  the  company. 
It  is  not  necessary  that  a  company  occupy  the  whole  street; 
and  the  municipality  may  pave  up  to  the  part  occupied58. 
A  proposed  paving  may  be  made  to  include  the  part  occupied 
by  a  sidewalk,  in  effect  abolishing  the  sidewalk,  not  by  any 
direct  resolution,  but  by  ordering  the  pavement  made  within 
the  limits  of  the  walk.  A  street  includes  the  whole  width 
of  public  highway;  and  while  it  is  customary  in  a  city  to 
set  aside  a. portion  of  it  for  foot  passengers,  there  is  no  rule 
of  law  absolutely  requiring  this,  and  in  many  instances  it 
might  be  useless.  The  entire  matter  is  within  the  control 
of  the  council59.  A  municipality  may  repave  a  street  at  the 


57.    Williams     v.     Detroit,     2  law,  provides  for  improving  roads 

Mich.    560,    581 ;    In    re    Furman  in  townships.     This  law  has  not 

Street,   17   Wend.   667;    Sheley  v.  yet  been  before  the  court. 

Detroit,    45    Mich.    431,   433.     Act  58.     Bagg   v.    Detroit,    5    Mich. 

231  of  Public  Acts  of  1903,  amend-  336,345.    . 

ed  by  Act  47  of   Public  Acts  of  59.     Brevoort     v.     Detroit,     24 

1907,  known  as  the  "Good  Roads"  Mich.  322,  325. 


467  GENERAL  POWERS  AND  PRELIMINARIES  \  926 

expense  of  the  property  owners  as  often  as  necessity  re- 
quires. All  street  improvements  are  ordered  in  view  of 
existing  needs,  which  vary  from  time  to  time.  Where  a 
cheap  improvement  might  answer  now,  a  costly  improve- 
ment might  be  demanded  in  the  future;  and  as  all  improve- 
ments add  to  the  value  of  the  abutting  lands,  there  is  no 
inequity  in  taxing  such  lands60.  The  power  exists  to  repave 
a  street  once  improved;  and  the  question  of  necessity  must 
be  determined  by  the  body  in  whom  the  power  is  vested. 
This  determination  is  not  open  to  review  or  collateral  attack 
except  in  cases  of  fraud.  In  such  work,  the  material  taken 
from  one  street  may  be  used  on  other  streets61.  Where  the 
municipality  is  required  to  determine  upon  the  details  of  the 
contract  for  paving,  and  then  submit  the  question  to  the  elec- 
tors, the  town  board  and  highway  commissioner,  may,  in 
good  faith,  change  the  grade  of  the  highway  after  the  elec- 
tion62. Where  a  street  needs  repaving  in  a  municipality  hav- 
ing a  charter  provision  that  the  owner  of  property  shall  not 
be  chargeable  with  the  cost  of  a  repaving  occasioned  by  a 
change  of  grade  of  the  street,  nevertheless  the  council  may 
change  the  grade  of  the  street  when  it  repaves  and  assess 
the  cost  to  the  property  owners  when  the  change  of  grade 
is  only  incidental  to,  and  not  the  cause  of,  the  repaving63. 
Where,  however,  the  charter  provides  that  the  property  own- 
ers shall  pay  the  cost  of  paving  in  the  first  instance,  but  that 
he  shall  not  be  chargeable  with  the  cost  of  a  repaving,  any 
repaving  cannot  be  charged  to  the  property  owner64.  When 
the  charter  provides  that  the  cost  of  repaving  shall  be  paid 
by  the  city,  changing  the  width  of  location  of  a  new  paving 

60.  Sheley  v.  Detroit.  45  Mich.      Board,  132  Mich.  365. 

431,   434;    Wilkins   v.    Detroit,  46  63.     Auditor  General   v.   Chase, 

Mich.  120,  122.  132  Mich.  630. 

61.  Shimmons  v.  Saginaw,  104  64.    Wreford     v.     Detroit.     132 
Mich.  512.  Mich.  348. 

62.  Campau   v.    Grosse    Pointe 


§§326,  327  THE  LAW  OF  TAXATION  468 

will  be  deemed  a  repavement,  as  where  the  city  tore  up  an 
old  pavement  and  left  a  park  in  the  middle  of  the  street, 
paving  on  each  side  of  such  park65. 

§326.     Power  to  Make  Sewers. 

A  city  or  village  has  the  right  to  use  its  streets  for  the 
purpose  of  constructing  sewers  without  obtaining  any  release 
of  right  of  way  from  the  abutting  owners.  The  dedication 
of  land  to  the  purpose  of  a  city  or  village  street  must  be 
understood  as  made  and  accepted  with  the  expectation  that 
it  may  be  required  for  other  public  purposes  than  those  of 
passage  and  travel  merely,  and  that  under  the  direction  and 
control  of  the  public  authorities,  it  is  subject  to  be  appro- 
priated to  all  of  the  uses  to  which  city  or  village  streets  are 
usually  devoted,  as  the  wants  of  the  people  may  render  neces- 
sary or  convenient.  One  of  the  uses  is  the  construction  of 
sewers,  which  are  usually  laid  under  the  public  streets;  and 
the  custom  to  lay  them  there  must  be  assumed  to  be  had 
in  view  when  a  way  is  dedicated ;  and  the  act  of  dedication  is 
a  waiver  of  any  claim  to  compensation  the  owners  might 
otherwise  have  made,  had  a  sewer  been  laid  across  their 
premises66. 

§327.     Power  to  Build  Sidewalks. 

A  provision  of  a  city  charter  that  all  repairs  of  sidewalks 
shall  be  paid  by  the  city,  does  not  compel  the  city  to  build  a 
new  walk  when  one  is  needed.  Such  a  provision  only  has 
reference  to  such  ordinary  repairs,  which,  without  changing 
the  character  of  the  walk,  or  amounting  to  a  substitution  of 
one  for  another,  are  needed  to  keep  an  existing  walk  in  a  ser- 
es. Dickinson  v.  Detroit,  111  30  Mich.  24,  28 ;  the  street  in  ques- 
Mich.  480.  tion  being  one  by  user. 

66.    Warren    v.    Grand    Haven, 


409  GENERAL  POWERS  AND  PRELIMINARIK-  ?  i  32£ 

viceable  and  safe  condition.  That  term  does  not  include  con- 
struction or  reconstruction67.  It  is  no  unlawful  interfer- 
ence with  the  rights  of  a  property  owner  to  prescribe  the 
kind  of  walk  he  shall  build.  He  has  no  interest  in  the  street 
except  that  common  to  the  general  public.  He  may  own 
the  fee  subject  to  the  public  easement,  and  when  the  street 
is  vacated,  the  entire  title  reverts  to  him ;  but  until  then,  the 
city  has  the  exclusive  control88. 

§328.     Reasonable  Time  to  Build. 

The  municipality  must  give  the  citizen  a  reasonable  time 
in  which  to  build  his  walk.  The  legislature  cannot  impose  a 
duty  upon  a  citizen,  give  an  insufficient  time  to  perform  it, 
and  then  authorize  some  one  else  to  perform  that  duty  for 
him,  and  impose  a  tax  upon  him  for  the  cost.  The  duty  to 
construct  a  sidewalk  is  purely  statutory.  A  provision  that  a 
walk  be  built  within  ten  days  is  unreasonable  and  void89. 
Either  an  ordinance  or  a  statute  requiring  all  owners  of  lots 
to  maintain  good  and  sufficient  sidewalks  under  penalty  of  a 
fine  or  imprisonment,  is  void.  No  legislative  body  has  the 
power  to  impose  a  duty  on  a  citizen  which  it  is  impossible  for 
him  to  perform  and  then  make  its  non-performance  a 
crime7 


B70 


§329.     Power  In  Re  Public  Parks  and  Water  Works. 

These  conveniences  are  local,  being  the  private  property 
of  the  municipality,  in  which  the  state  has  no  concern.  The 
legislature  has  no  authority  to  compel  the  citizens  of  the 
state  to  submit  to  taxation  by  way  of  special  assessments  in 

f>7.     Walker     v.     Detroit,     143  60.    Auditor    General    v.    Hoff- 

Mich.  427.  man.  129  Mich.  541. 

68.    In    re    Obrien,    119    Mich.  70.     Port   Huron   v.   Jenkinson, 

MO;    Schrihner  v.   Grand   Rapids,  77   Mich.  414,  419. 
119  Mich.  188. 


§  330  THE  LAW  OF  TAXATION  470 

matters  which  apply  to  such  necessities  or  conveniences 
adopted  only  to  local  conditions.  Therefore,  the  legislature 
cannot  authorize  a  water  board  to  lay  water  pipe  and  assess 
the  cost  thereof  against  the  adjoining  property71.  The  legis- 
lature cannot  delegate  to  a  commission  not  appointed  by  the 
municipality  for  that  purpose,  the  power  to  purchase  lands 
for  a  park,  and  compel  the  municipality  to  pay  for  it.  As  to 
such  property,  the  state  cannot  interfere  with  it  any  further 
than  it  could  with  a  private  owner,  further  than  to  restrict 
the  action  of  the  municipality,  since  it  is  the  local  property 
of  such  municipality72.  The  legislature  cannot  confer  upon 
a  body  of  local  officers  previously  appointed,  the  power  to 
act  in  these  local  matters,  since  such  action  in  fact  gives  the 
municipality  no  voice  in  the  matter,  and  is  equivalent  to  an 
appointment  by  the  state  itself73.  The  statute  cannot  author- 
ize the  cost  of  street  sprinkling  to  be  assessed  upon  property 
owners74.  A  village  may  not  borrow  money  to  construct 
and  maintain  water  works.  It  has  no  authority  to  borrow 
money  for  maintenance76. 

§330.     Limitations  of  Tax. 

The  statute,  1  H.  S.  §  2646,  C.  L.  § —  limits  the  amount 
to  be  levied  upon  any  property  at  25 %  of  its  assessed  value; 
and  H.  S.  §  2699  limits  the  amount  to  be. raised  in  any  one 
year  at  5%  of  such  valuation.  If  the  total  levy  does  not 


71.  Cass  Farm  Co.  v.  Detroit,  troit   Council,  28  Mich.  228,  242; 
124  Mich.  426,  429,  construing  Lo-  Cass    Farm    Co.    v.    Detroit,    124 
cal  Act  No.  477,   of   Public  Acts  Mich.    426;    Bailey    v.    Mayor    of 
of  1897;  Bailey  v.  Mayor  of  New  New  York,  3  Hill  531. 

York,  3  Hill  531 ;  Blades  v.  Water  74.     Stevens  v.  Port  Huron,  149 

Co.,  122  Mich.  366 ;  Jones  v.  Com-  Mich.   536 ;    Kalamazoo   v.    Craw- 

missioners,  34  Mich.  273.  ford,  15  L.  N.  669,  . . .   Mich. 

72.  Bd.  of  Park  Com'rs>.  De-  75.    Richardi    v.     Bellaire    Vil- 
troit  Council,  28  Mich.  228,  242.  lage,  153  Mich.  560., 

73.  Bd.  of  Park  Com'rs  v.  De- 


-K  1  GENERAL  POWERS  AND  PRELIM  I NAK I  $:','•',  I 

exceed  such  25%,  and  is  not  spread  over  more  than  five 
years,  the  levy  is  valid76.  Under  C.  L.  Chap.  87,  a  village 
has  no  authority  to  extend  an  assessment  over  a  number  of 
years.  Any  excess  of  cost  of  an  improvement  over  the 
maximum  limit  provided  by  statute  to  be  assessed  upon  the 
private  owners  must  be  paid  by  the  municipality77.  Under 
Act  39  of  Public  Acts  of  1899  providing  that  special  assess- 
ments may  be  divided  into  five  equal  annual  installment^ 
but  that  if  one  part  is  not  paid,  it  shall  all  become  due  and 
no  extension  be  granted,  will  not  authorize  a  village  to  raise 
in  one  year  more  than  5%  upon  the  valuation  provided  by 
C.  L.  §2856.  The  property  will  be  discharged  from  all  liens 
over  the  5%78. 

§331.     Board  of  Public  Works. 

A  provision  of  a  city  charter  giving  the  board  of  public 
works  power  to  determine  the  kind  and  quantity  of  material 
to  be  used,  does  not  give  it  power  to  determine  the  general 
character  of  the  work.  It  is  the  duty  of  the  council  to  avail 
itself  of  whatever  information  the  board  possesses,  but  the 
authority  for  expenditures  originates  with  the  council;  and 
that  authority  includes  the  right  to  determine  the  question  of 
cost,  dimensions,  and  general  character  of  the  work70.  The 
purpose  of  the  statute  in  creating  a  board  of  public  works 
is  to  place  public  improvements  under  the  oversight  of  a 
responsible  board,  not  independent  of  the  council,  but  auxil- 
iary to  it.  There  is  nothing  inconsistent  with  local  legisla- 
tion in  having  either  boards  or  other  executive  service  do, 


76.  Boehme    v.    Monroe    City,  161. 

106  Mich.  401,  406.  78.    Corliss  v.  Village  of  High- 

77.  Corliss   v.   Highland    Park,  land  Park,  146  Mich.  597. 

132    Mich.    152,    159;    Corliss    v.         79.    Common  Council  v.  Board 

Highland    Park.    132    Mich.    152,  of  Public  Works,  87  Mich.  in. 


§  332  THE  LAW  OF  TAXATION  472 

under  proper  conditions  what  is  in  no  sense  legislative  work. 
As  a  rule,  their  action  is  not  final  but  merely  designed  to 
enable  the  council  to  act  understandingly80.  When  the  board 
directed  its  clerk  to  advertise  for  bids,  but  did  not  fix  the 
time,  they  will  be  held  to  have  adopted  the  time  fixed  by 
the  clerk  when  they  receive  proposals  under  the  advertise- 
ment81. When  a  contract  is  authorized  to  be  let  by  the 
council,  the  board  of  public  works  can  make  no  substantial 
deviation  therefrom.  It  has  no  power  to  allow  for  extras 
without  the  consent  of  the  council.  This  would  be  in  effect 
making  a  new  contract  which  had  not  been  ratified  by  the 
council82.  Although  the  board  of  public  works  may  be  re- 
quired to  execute  the  contract,  yet  if  its  approval  is  required 
by  the  council,  it  may  refuse  to  do  so  after  the  board  has 
accepted  the  lowest  bid83.  The  boafd  has  no  power  to 
modify  a  contract  and  increase  the  cost  of  the  work,  or  to 
allow  extras,  without  the  consent  of  the  council.  See 
§363,  post. 

§332.     Board  of  Estimates. 

Litigation  over  the  powers  of  this  board  have  arisen 
mainly  under  the  charter  of  the  City  of  Detroit.  It  is  not 
necessary  that  this  board  approve  of  the  issuing  of  bonds 
to  pay  for  an  improvement84.  Where,  however,  it  has 
struck  out  a  charge  for  a  sidewalk  assessment  clerk  employed 
by  the  board  of  assessors,  the  controller  will  not  be  obliged 
to  pay  the  same85,  and  it  is  competent  for  it  to  disallow  items 


80.  Butler  v.  Detroit,  43  Mich.  §362,  post. 

552,  555.  83.  Grant  v.  Detroit,  91  Mich. 

81.  Duffy     v.      Saginaw.      106  274. 

Mich.  335.  84.  Commissioners  v.  Rush.  84 

82.  Campau     v.     Detroit,     106  Mich.  154. 

Mich.  414,  419  ;  Chittenden  v.  Lan-  85.  Detroit  v.  Blades,  133  Mich, 

sing,  120  Mich.  539;  see  Contract.  249. 


473  GENERAL  POWERS  AND  PRELIMINARIES 

in  the  annual  budget,  approved  by  the  council86.  The  council 
have  no  authority  to  submit  a  vote  for  a  loan  to  construct 
water  works  without  having  first  adopted  an  estimate  of 
the  cost87.  Neither  can  the  council  erect  electric  light  works 
without  having  estimates  from  the  board  before  the  con- 
tract is  let88. 

;;333.     Board  of  Assessors. 

The  municipality  has  the  power  to  delegate  the  assessment 
of  these  taxes.  The  statute  does  not  require  that  the  appor- 
tionment of  the  tax  among  individuals  or  between  lots  with 
reference  to  benefits,  is  to  be  performed  by  the  council.  Such 
an  apportionment  requires  for  its  proper  performance  an 
examination  of  the  several  premises  in  detail ;  and  as  it  in- 
volves merely  administrative  functions,  it  is  not  necessary 
that  the  entire  council  participate  in  the  work,  which  would 
often  be  impracticable.  It  is  the  natural  and  customary  pro- 
ceeding to  designate  one  or  more  assessors  for  that  pur- 
pose89. When  a  board  is  appointed  and  they  proceed  to 
act,  they  are  at  least  officers  de  facto;  and  in  an  attack  upon 
the  tax,  the  court  will  not  determine  whether  or  not  they 
were  officers  de  jure00.  Action  by  the  majority  of  the  as- 
sessors is  valid,  if  all  members  of  the  board  had  proper  notice 
of  their  meeting91. 

Form  of  Instructions  to  Assessors. 

Resolved  that  the  Board  of  Assessors  of  the  city  of 
be  and  hereby  are  ordered  to  prepare  a  special 


86.  Robinson    v.    Detroit,    107  89.     Warren  v.  Grand  Haven, 
Mich.   168.  30  Mich.  24,  29. 

87.  Richardi    v.    Bellaire    Vil-  90.     Boehme  v.  Monroe  City, 
lage,  153  Mich.  560.  106  Mich.  401,  406. 

88.  Bay  Qty  Traction,  etc.,  Co.  91.     Cummings       v.       Grand 

v.  Bay  City,  15  L.   N.  1039 Rapids,  46  Mich.  150,  160. 

Mich. 


§  333  THE  LAW  OF  TAXATION  474 

assessment  roll  for  the  payment  of  ....  per  cent  of  cost  of 

paving street  or  seivering , 

street,  which  per  cent  is  to  be  paid  by  the  lots,  lands  and 
premises  abutting  upon  such  improvements,  which  said  role 

sliatt  levy  the  sum  of dollars,  being  ....  per 

cent  of  the  cost  of  said  improvement  upon  all  lots,  land  and 
premises  abutting  upon  said  improvements,  including  there- 
in all  intersections  of  street,  alleys  and  public  parks  and  pub- 
lic grounds  benefited  thereby,  according  to  the  map,  plans, 
and  diagrams  thereof  now  on  file  with  the  clerk  of  this 
counsel. 

£a<id  rolls  shall  assess  all  lots,  land  and  premises  included 

in  said  paving  district  No according  to  benefits, 

which  in  the  opinion  of  such  Board,  each  separate  and  single 
parcel  of  land  shall  receive  said  public  improvement. 

Said  special  assessment  rolls  shall  be  made  by  said  special 
assessors  in  accordance  with  the  provisions  of  the  charters 

of  the  city  of and  the  statutes  of  the  State  of 

Michigan. 

It  is  further  ordered  that  the  amount  so  assessed  against 
each  parcel  be  divided  into  five  equal  parts,  one  part  to  be 
collected  this  year,  to-zvit ,  and  one  part  to  be  col- 
lected annually  hereafter  until  the  whole  is  collected,  with 

interest  on  such  parts  preferred  as at  the  rate  of  six 

per  cent  per  annum. 

It  is  further  ordered  that  the  said  Board  of  Assessors 
place  upon  said  roll  the  valuation  of  each  parcel  of  land 
fronting  upon  said  improvement  as  fixed  by  the  last  assess- 
ment roll  the  per  cent  of  benefits  received  by  each  parcel  the 
amount  of  money  to  be  collected  on  account  of  such  parcel 
this year. 

It  is  further  ordered  that  the  said  Board  of  Assessors 
apportion  against  the  said  city  of its  just 


475  GENERAL  POWERS  AND  PREUMINAK1I  S 

proportion  of  the  cost  of  the  said  improvement  received  by 
public  places  and  parks,  the  same  to  be  assessed  according 
to  the  benefits  received. 

It  is  further  ordered  that  the  cost  of  the  intersections  of 
all  streets  and  alleys  be  assessed  against  said  city  of 

It  is  further  ordered  that  the  entire  assessment  against 
any  particular  parcel  shall  not  exceed  twenty-five  per  cent  of 
such  assessed  valuation,  nor  exceed  five  per  cent  of  any  such 
valuation  in  one  year,  and  that  any  excess  thereover  shall 

be  assessed  against  the  said  city  of ,  to  be 

paid  out  of  the  general  fund  of  said  city. 

It  is  further  ordered  that  the  Board  of  Assessors  report 
such  rolls  to  this  counsel  and  file  the  same  with  the  clerk  on 

or  before  the day  of (under 

the  Charter  for  villages  only  five  per  cent  of  the  valuation 
of  any  parcel  may  be  assessed  against  it.)  The  provision  as 
to  a  total  assessment  of  twenty-five  per  cent  of  the  valuation 
of  any  lot  does  not  apply  to  villages. 

§334.     Determining  Amount  to  be  Paid  by  the  City. 

This  determination  must  be  made  by  the  council.  It  can- 
not be  made  by  the  assessing  board  or  the  levy  will  be  void92. 
When  the  determination  has  once  been  made,  and  a  portion 
of  the  taxes  paid  by  the  property  owners,  the  municipality 
cannot  thereafter  increase  the  proportion  of  the  taxes  to  be 
paid  by  those  parcels  upon  which  the  assessment  had  not  as 
yet  been  paid.  This  would  be  an  unjust  and  an  arbitrary 
assessment93.  It  is  the  proper  function  of  the  council  to 
determine  the  amount  of  benefits  the  property  benefited  shall 

92.     Scoficld    v.     Lansing,    17  rich  v.  Detroit    123  Mich.  559. 

Mich.     437,     447;     Thomas     v.  93.     White     v.     Saginaw,     67 

Gain,    35    Mich.    155;    Voigt    v.  Mich.  33,  40. 
Detroit,    123    Mich.    547;    Good- 


§  335  THE  LAW  OF  TAXATION  476 

pay,  and  the  amount  the  city  shall  pay.  It  does  not  follow 
that  the  entire  amount  awarded  as  damages  in  street  open- 
ing cases  shall  be  assessed  as  benefits94.  The  municipality 
cannot  assess  the  private  land  owner  a  greater  percentage 
of  the  cost  of  the  improvement  than  the  limit  fixed  by  statute. 
The  municipality  will  be  bound  to  pay  any  excess95.  The 
municipality  cannot  charge  the  entire  cost  of  an  improvement 
to  the  lot  owners,  and  also  retain  the  proceeds  of  property 
sold  off  from  the  premises  condemned  for  the  public  use.  In 
such  case,  the  property  owners  must  be  given  their  pro  rata 
share  of  such  proceeds96.  The  legislature  has  no  power  to 
prescribe  absolutely  the  percentage  the  city  shall  pay  and  the 
percentage  which  shall  be  charged  up  to  the  district.  Such 
a  statute  takes  no  account  of  benefits  received,  and  is  un- 
constitutional and  void97.  A  statute  is  not  unconstitutional 
because  it  does  not  fix  any  standard  for  determining  how 
much  shall  be  paid  by  the  land  owner  and  how  much  by  the 
city.  This  is  left  to  the  determination  of  the  council,  whose 
action  is  final  and  conclusive98. 

§335.     Plans  and  Specifications. 

A  charter  which  provides  that  these  may  be  changed,  and 
the  work  added  to  or  diminished  before  the  completion  of 
the  assessment  roll,  does  not  refer  to  the  contract  for  the 
work,  which  must  be  let  to  the  lowest  bidder99.  The  action 
of  the  board  of  public  works,  in  the  matter  of  plans  and 
specifications  for  paving,  is  final,  when  they  have  prepared 

94.  Beecher    v.     Detroit,     92  a  house   standing  thereon. 
Mich.  268.  97.     Detroit       v.      Judge       of 

95.  Corliss  v.  Highland  Park,  Recorder's    Court,   112   Mich.   588. 
132  Mich.   152,  161.  98.     Voight      v.      Detroit,      123 

96.  Powers    v.     Detroit,    139  Mich.  547. 

Mich.    30,   where    the    city   con-          99.     Ely  v.   Grand   Rapids,  84 
demned  a  way  for  a  street,  and      Mich.  336. 
sold   and   kept   the   proceeds   of 


•±77  GENERAL  POWERS  AND  PRELIMINARIES 

sudi  that  bidders  can  understand  and  act  upon'them  intelli- 
gently. It  is  only  when  the  board  has  acted  ignorantly,  and 
prepared  plans  which  are  clearly  insufficient  to  form  a  basis 
for  fair  and  intelligent  bidding,  or  where  they  acted  fradu- 
lently,  that  the  courts  will  interfere1.  When  the  statute  re- 
quires a  work  to  be  let  to  the  lowest  bidder,  the  plans  and 
specifications  should  be  such  that  a  gross  sum  can  be  bid. 
A  bid  based  upon  contingencies,  as  a  certain  price  if  rock 
is  encountered,  and  another  if  it  is  not,  is  void.  The  reason 
is  that  it  is  impossible  to  tell  who  is  the  lowest  bidder  where 
there  is  a  contingent  bid2.  If  the  plans  and  specifications 
are  changed  after  the  hearing  of  objections,  it  is  necessary 
that  a  new  hearing  be  advertized  and  held.  Where  plans 
are  changed  so  as  to  add  additional  work,  such  change  is 
unauthorized  without  a  readvertisement ;  but  the  municipal- 
ity, having  received  the  benefit  of  the  work,  will  be  obliged 
to  pay  for  it3. 

$336.     Use  of  Patented  Articles. 

The  fact  that  a  specification  calls  for  a  patented  article 
of  which  the  owner  of  the  patent  practically  holds  a 
monopoly,  does  not  render  the  plans  bad  or  the  bid  void. 
The  legislature  cannot  be  presumed  to  have  intended  to  de- 
clare that  no  power  should  be  exercised,  or  work  done,  or 
supplies  furnished,  unless  of  a  character  that  would  admit  of 
competitive  bids.  The  grant  of  power  was  for  public  pur- 
poses, and  the  discretion  vested  in  the  common  council  was 
in  the  interest  of  the  public ;  and  neither  the  public  nor  the 
parties  to  be  benefited  by  the  local  improvements  can  be 

1.  Kundinger  v.  Saginaw.  132      cited. 

Mich.  395,  405.  3.     Thayer     Lumber     Co.     v. 

2.  McBrian  v.  Grand  Rapids,      Muskegon,  152  Mich.  59;  Pet»:r- 
56     Mich.    95,     108,    and     cases      son  v.  Ionia,  152  Mich.  678. 


§  337  THE  LAW  OF  TAXATION  478 

deprived  of  the  benefit  of  this  discretion,  or  the  right  to  the 
best  and  most  improved  work  or  article,  because  full  effect 
cannot,  in  a  particular  case,  be  given  to  an  act  designed  for 
another  purpose,  viz.,  to  regulate  the  exercise  of,  and  not 
to  limit,  the  power4. 

§337.     Estimates. 

The  purpose  of  requiring  estimates  from  the  board  of 
public  works  is  to  prevent  the  council  from  going  forward 
with  any  work  involving  the  expenditure  of  money  without 
first  considering  both  its  expediency  and  its  probable  cost. 
It  is  not  supposed  that  the  council  has  an  'adequate  knowl- 
edge of  all  of  the  streets,  or  of  the  wishes  of  the  persons 
living  on  them.  Therefore,  a  letting  of  contract  for  an  im- 
provement in  advance  of  the  estimates  required  by  law  ren- 
ders the  contract  and  tax  void5.  When  the  board  of  public 
works  have  previously  furnished  a  detailed  estimate  of  the 
expense  of  the  paving  of  a  street,  a  requirement  that  a  de- 
tailed statement  of  the  cost  should,  on  the  completion  of  the 
work,  be  furnished  to  the  council,  is  complied  with  by  fur- 
nishing the  cost  in  gross,  to  be  paid  by  the  property  owners 
and  the  city6.  Where  the  statute  requires  the  board  of  public 
works  to  furnish  a  detailed  estimate  of  the  cost  of  a  pro- 
posed improvement,  it  will  be  their  duty  to  do  so;  but  if 
only  the  total  sum  is  reported  to  the  council,  and  that  body 
sees  fit  to  act  upon  it,  no  objection  can  be  taken  afterwords. 
The  estimate  is  for  the  information  of  the  council,  to  enable 
that  body  to  determine  how  much  money  shall  be  raised; 

4.    Holmes   v.   Detroit   Coun-  Ed.). 

cil,     120     Mich.     226,    235,     and  5.     Butler  v.  Detroit,  43  Mich, 

cases    cited;    Saunders    v.    Ionia  552,  555. 

City,   111   N.   W.   Rep.   529.     See  6.     Duffy     v.      Saginaw,     106 

20  Am.  and  Er.g.  Ency.  1166  (2nd  Mich.  335. 


479  GENERAL  POWERS  AND  PRELIMINARIES  §  338 

and  if  the  council  has  the  sum  total,  and  act  upon  it  without 
calling  for  further  particulars,  the  question  will  be  pre- 
cluded7. Bids  for  the  construction  of  a  work  cannot  be 
asked  until  these  estimates  have  been  filed  with  the  council. 
Where  bids  have  been  asked  for  and  rejected,  before  the  esti- 
mate was  made,  a  subsequent  contract  will  be  valid  if  the 
estimates  were  made  prior  thereto8.  The  board  may  adopt 
the  report  of  the  surveyor;  and  it  is  doubtful  if  it  is  neces- 
sary to  furnish  a  detailed  report  to  the  council9.  It  may 
furnish  a  detailed  estimate,  without  adding  the  items  to- 
gether10. The  estimate  adopted  must  be  clear  and  un- 
equivocal as  to  the  sum  to  be  raised,  and  the  purpose  for 
which  it  is  raised;  otherwise,  the  vote  and  proceedings  had 
thereon  will  be  void11. 

§338.     Notice  of  Proposed  Improvement. 

In  the  absence  of  statutory  provision,  no  notice  of  the 
formation  of  the  assessing  district, ,  or  of  the  cost  of  the 
proposed  improvement,  or  of  the  determination  of  its  neces- 
sity, need  be  given  to  the  property  owner.  These  functions 
are  legislative  in  character,  depending  wholly  upon  the  dis- 
cretion of  the  legislative  body.  When,  however,  the  pro- 
ceeding have  reached  the  stage  where  it  becomes  necessar> 
to  decide  what  proportion  of  the  cost  of  the  proposed  im- 
provement shall  be  assessed  to  any  given  description,  there 
must  then  be  given  an  opportunity  to  the  owner  of  the  land 
to  be  heard  upon  that  question12.  The  charter  of  fourth 

7.  Goodwillie  v.  Detroit,  103      Rapids,  46  Mich.  150,  158. 
Mich.    283,    286;    Cummings    v.          10.     Baisch   v.   Grand    Rapids, 
Grand    Rapids,    46    Mich.    157;      84    Mich.    666. 

Butler  v.  Detroit,  43  Mich.  552;  11.    Richardi    v.    Bellaire    Vil- 

Mills   v.   Detroit,   95   Mich.   422.  lage,   153   Mich.  560. 

8.  Wilkins     v.     Detroit,     46  12.     Voigt     v.      Detroit,     123 
Mich.  120,  124.  Mich.  447. 

9.  Cummings        v.        Grand 


§  339  THE  LAW  OF  TAXATION  480 

class  cities  requires  notice  to  be  given  by  publication,  for 
two  weeks,  of  the  hearing  of  objections  to  a  proposed  im- 
provement. Such  requirement  is  not  complied  with  unless 
fourteen  days  intervene  between  the  time  of  the  first  pub- 
lication and  the  hearing13.  Where  an  ordinance  requires  ser- 
vice of  notice  of  a  proposed  improvement  to  be  made  either 
personally,  or  by  leaving  the  notice  at  the  land  owner's  resi- 
dence, the  service  will  not  be  good  where  the  notice  is  left 
at  the  office  of  a  land  owner  during  his  absence  therefrom. 
When  the  notice  is  required  to  be  published  for  five  consecu- 
tive days,  a  publication,  omitting  the  fourth  day  (Sunday), 
will  not  be  good  where  the  paper  was  published  on  that 
day14.  The  notice  must  give  the  approximate  location  of 
the  improvement,  and  of  the  property  to  be  assessed  there- 
for15. See  Form,  §321. 

§339.     Notice  of  the  Assessment. 

Notice  to  the  owners  or  occupants  of  lands  to  be  assessed 
must  be  given,  whether  the  statute  requires  it  or  not.  The 
statute  may  delegate  to  the  common  council  the  mode  of 
making  the  assessment,  and  the  method  of  giving  notice  to 
the  persons  interested.  Personal  service  of  a  notice  is  not 
required,  and  in  fact,  is  often  an  impossibility.  The  ordi- 
nance may  provide  for  substituted  service  by  publication; 
and  such  notice  will  be  valid16.  Persons  whose  property  is 
taxed  for  a  special  improvement  are  entitled  to  be  heard  at 
some  stage  of  the  proceedings  before  the  tax  becomes  an 
established  lien  against  their  property17.  An  assessment  for 

13.  Auditor    General    v.    Cal-      Muskegon,  152  Mich.  59. 

kins,  136  Mich.  1.  16.     Williams     v.     Detroit,     2 

14.  Mills  v.  Detroit,  95  Mich.      Mich.   560,   580. 

422.  17.     Thomas  v.  Gain,  35  Mich. 

15.  Thayer     Lumber     Co.    v.      155. 


4*1  GENERAL  POWERS  AND  PRELIMINARIES 

a  public  improvement  will  be  void  where  the  statute  fails  to 
provide  for  notice  to  the  owners  of  property  proposed  to  be 
assessed18.  A  requirement  that  the  city  engineer  should  give 
notice  of  the  completion  of  the  assessment,  contemplates 
notice  by  publication;  and  the  owners  need  not  be  named 
in  such  notice  unless  it  is  so  required  by  statute18.  Where 
the  notice  fixes  upon  Sunday  as  a  day  of  review,  and  is  not 
corrected,  the  mistake  is  fatal  to  the  tax  in  the  absence  of 
an  estoppel,  such  as  paying  part  of  the  tax20.  When  the  land 
owner  appears  at  the  hearing,  such  an  appearance  is  a  waiver 
of  any  irregularities  in  the  service  of  the  notice21.  Two 
weeks  notice,  by  publication,  is  a  reasonable  time  to  give  the 
tax  payer  to  file  his  objections  to  an  assessment22.  A  tax- 
payer is  not  entitled  to  be  heard  to  complain  of  the  proceed- 
ings in  the  probate  court  to  condemn  a  right  of  way  for  a 
street,  when  the  assessment  is  not  made  by  the  jury-3. 
Where  the  first  assessment  is  set  aside  and  a  new  one  made, 
a  land  owner  cannot  complain  because  he  did  not  receive 
notice  of  the  first  one24. 

Form  of  Notice  of  Review  of  Assessors. 

Rcsok'cd,  that  the  counsel  of  the  city  of TV.-/// 

meet  in  the  counsel  chamber  of  said  city  on  the 

day  of ,  at  7  o'clock  P.  M.,  together  until  the 

Board  of  Special  Assessors  of  said  city,  to  hear  objections 
TO  special  assessments  reported  to  this  counsel  for  special 
street  No ;  and  all  persons  interested 

18.  Sligh    v.    Grand    Rapids,  22.     Auditor  General  v.  Hoff- 
84   Mich.  497.  man,  132  Mich.  198. 

19.  Palmer     v.    Port    Huron,  23.     Scotten    v.     Detroit,    106 
139   Mich.  471.    .  Mich.  564;  Borgman  v.  Detroit, 

20.  Louden  v.  East  Saginaw,  102  Mich.  261. 

41    Mich.   18.  .24.     Townsend    v.    Manistee, 

21.  Gregory    v.    Ann    Arbor,      88  Mich.  408. 
127   Mich.  454. 

(31) 


§§  340,  341  THE  LAW  OF  TAXATION  482 

therein  are  notified  to  be  present  and  make  their  objections, 
if  any,  known;  and  this  counsel  will  then  revieiv  the  said 
special  assessment  roll  which  is  on  file  in  the  office  of  the 
clerk  of  said  city  and  open  for  inspection. 

It  is  further  ordered  that  the  city  clerk  cause  notices  to  be 

published  for  two  weeks  prior  thereto  in  the ,  a 

newspaper  printed  and  of  general  circulation  in  said  city  and 
county. 


Clerk. 

(The  above  resolutions  should  be  passed  by  the  counsel 
and  then  may  be  printed  as  a  notice  in  this  form.) 

§340.     Notice  for  Bids. 

Where  the  statute  requires  the  board  of  public  works  to 
advertise  for  bids,  a  notice  signed  by  the  president  is  suf- 
ficient, if  it  purports  to  emanate  from  the  board26.  Where 
the  board  directed  its  clerk  to  advertise  for  bids,  but  did  not 
fix  the  time  for  opening  them,  the  time  fixed  by  the  clerk 
will  be  deemed  adopted  by  the  board  when  it  opens  the  pro- 
posals at  that  time26.  Where  the  charter  requires  the  notice 
to  contain  the  specifications  of  the  work,  it  should  furnish 
the  bidders  a  full  knowledge  of  the  work  without  requiring 
a  personal  visit  to  any  office  for  the  details27.  The  specifica- 
tions included  in  the  notice  may  form  the  entire  contract28. 

§341.     Publication  of  Notice. 

A  provision  that  notice  shall  be  given  without  specifying 
details,  contemplates  a  notice  by  publication29.  Either  the 

25.  Beniteau    v.     Detroit,    41      Mich.    120,    125. 

Mich.   116,   119.  28.     Whitney  v.   Hudson   Vil- 

26.  Duffy     v.     Saginaw,     106      lage,  69  Mich.  189,  204. 

Mich.  335.  29.     Palmer    v.     Port    Huron, 

27.  Wilkins     v.     Detroit,     46      139    Mich.   471. 


GENERAL  POWERS  AND  PRELIMINARIES 

statute  or  the  ordinance  may  provide  for  substituted  service. 
Personal  service  is  not  an  essential,  and  is  often  an  impos- 
sibility30. Where  the  statute  requires  notice  to  be  given 
for  two  weeks,  by  publication,  such  a  provision  requires  that 
fourteen  days  intervene  between  the  time  of  the  first  pub- 
lication and  the  day  of  hearing  specified  in  the  notice31.  Two 
weeks  notice,  by  publication,  is  a  reasonable  time  for  the  tax 
payer  to  file  his  objections  to  an  assessment82.  Where  the 
council  permits  the  lowest  bidder  to  withdraw  his  bid,  the 
work  should  be  readvertised33.  Where  a  notice  is  required 
to  be  published  for  five  consecutive  days,  a  publication  which 
omits  the  fourth  day,  Sunday,  will  not  be  good  when  the 
paper  was  published  on  that  day34.  Where  the  only  notice 
given  to  a  non-resident  property  owner  is  a  publication  of 
the  supposed  names  of  the  owner,  without  describing  the 
property,  a  mistake  in  the  name  of  an  owner,  or  the  omission 
of  his  name  altogether,  is  fatal  to  the  tax35.  Where  the 
plans  are  changed  after  letting  one  contract,  there  should  be 
a  new  publication38. 

§342.     Service  of  Notice  and  Return. 

Where  a  tax  payer  appears  before  the  reviewing  board,  his 
appearance  is  a  waiver  of  any  irregularity  in  the  service37. 
Under  the  healing  act  in  the  charter  of  Saginaw,  the  failure 
to  file  proof  of  the  service  of  notice  of  the  review  of  an 

30.  Williams     v.     Detroit,     3      Mich.  528,  532. 

Mich.    560,    580.  34.     MMlls      v.      .Detroit,      95 

31.  Auditor    General    v.    Cal-      Mich.    422. 

kins,     136     Mich.     1;     the     same  35.     Hill  v.  Wanell,  87  Mich, 

rule    will    be    found,    as    to    the  135. 

intervening    time,    in    Gantz    v.  36.     W.  F.     Stewart     Co.     v. 

Toles,   40    Mich.    725;    Bacon   v.  Flint,    147  Mich.    637;    Auditor 

Kennedy,  56  Mich.  329.  General  v.  Stoddard,   147  Mich. 

32.  Auditor  General  v.  Hoff-  329. 

man,  132  Mich.  198.  37.     Gregory    v.    Ann    Arbor, 

33.  Twiss  v.  Port  Huron,  63      127  Mich.  454. 


§  343  THE  LAW  OF  TAXATION  484 

assessment  by  the  council,  will  not  invalidate  the  roll  when 
such  notice  was  in  fact  given38.  Leaving  a  notice  at  the 
office  of  a  tax  payer,  in  his  absence,  will  not  be  good  ser- 
vice where  the  ordinance  requires  that  it  be  left  at  his  resi- 
dence if  he  cannot  be  found39.  A  return  that  service  was 
made  upon  the  different  named  parties  as  provided  by  ordi- 
nance, and  reciting  the  ordinance,  is  a  good  return40. 

§343.     Costs  and  Expenses. 

The  cost  of  advertising,  superintendance,  etc.,  is  properly 
included  in  the  sum  to  be  raised41.  So  also  is  the  cost  of 
storm  sewers42.  The  warrant  may  provide  for  the  collection 
of  the  treasurer's  fees  in  addition  to  the  amount  to  be  paid 
into  the  special  fund43.  It  is  in  the  power  of  the  council  of 
Detroit  to  provide  that  the  penalties  of  the  general  tax  law 
shall  apply  to  the  collection  of  a  special  assessment  for  street 
opening  purposes44. 

38.  Shimmons     v.     Saginaw,      Mich.  116,   118. 

104  Mich.  512,  520.  42.     Purpose     of     Tax,     §406, 

39.  Mills  v.  Detroit,  95  Mich.      supra. 

422.  43.     Warren  v.  Grand  Haven, 

40.  Grand    Rapids    Furniture      30  Mich.  24. 

Co.  v.  Grand  Rapids,  92  Mich.  44.  Powers  v.  Detroit,  139 
564,  572.  Mich.  30. 

41.  Beniteau    v.    Detroit,    41 


CHAPTER  XXI. 
THE  ASSESSMENT. 


8344.  The  Assessment  District. 

§345.  Exemptions.     Church  Property. 

§3 16.  Exemptions.     Public   Property. 

5347.  Contracts  to  Exempt. 

§348.  Roll.     Residents  and  Non-residents. 

§349.  Roll.     Valuation. 

§350.  Roll.    Amount  to  be  Raised  Each  Year. 

§351.  Roll.     Miscellaneous. 

§352.  Assessment  by  Frontage. 

8353.  Assessment  According  to  Benefits. 

8354.  Assessment  According  to  Area. 

8355.  Hearing  or  Review. 

8356.  The  Certificate  on  the  Roll. 

Form  of  Certificate  of  Board  of  Assessors. 

8357.  Confirmation  of  Roll. 

Form  of  Resolution  Approving  Roll. 

8358.  Vacating  Assessments. 

8359.  Re-assessment. 


§344.     The  Assessment  District. 

The  primary  purpose  of  a  sewer  is  to  carry  off  offen- 
sive material  which,  if  not  removed,  would  be  a  cause  of 
discomfort  and  disease.  In  the  construction  of  sewers,  con- 
siderations of  convenience  to  the  inhabitants  of  the  particu- 
lar locality  are  involved  quite  as  much  as  those  of  health; 
and  it  would  be  competent  for  the  proper  authorities  to 
order  a  sewer  opened  without  taking  into  account  all,  or 
any,  of  the  improvement  to  the  natural  surface  or  protec- 
tion of  health.  Whether  or  not  it  would  be  wiser  or  more 
just  that  the  burden  should  be  borne  by  the  city  at  large 
rather  than  by  a  particular  district,  must  be  determined  by 


§  344  THE  LAW  OF  TAXATION  486 

the  proper  legislative  authority,  which  has  an  undoubted 
rigkt  to  designate  a  special  taxing  district1.  Every  valid 
assessment  must  be  based  upon  the  legally  ordained  basis 
of  apportionment,  and  not  arbitrarily.  The  charge,  whether 
based  on  supposed  benefits  or  any  other  legal  basis,  must  be 
spread  over  the  taxing  district  according  to  some  uniformly 
applied  rule,  and  in  such  a  way  as  to  show  a  compliance 
with  the  rule.  There  may  be  a  necessity  of  leaving  con- 
siderable discretion  to  the  authorities  who  determine  a  tax- 
ing district,  if  it  differs  from  the  ordinary  municipal  sub- 
divisions; but  it  cannot  be  such  an  uncontrolled  discretion 
as  to  leave  no  public  character  whatever  to  the  district,  and 
make  a  purely  private  charge  under  pretense  of  setting  off 
an  assessing  district.  The  only  theory  on  which  the  doc- 
trine of  charging  the  expense  of  public  works  on  property 
benefited  can  be  maintained  is  that  if  local  improvements 
can  be  conveniently  paid  for  by  local  assessments,  in  the 
long  run  the  general  public  may  be  charged  with  the  gen- 
eral result  with  approximate  equality.  In  other  words,  each 
locality  will  be  paying  for  such  improvements  so  that  finally 
it  will  amount  to  the  general  public  paying  for  all  of  the  im- 
provements2. Local  taxation  need  not  be  limited,  or  co- 
extensive with,  any  previously  established  district.  The 
legislature  may  determine  upon  all  questions  of  policy  or 
fact  in  determining  an  assessment  district;  and  it  must  be 
left  to  its  own  methods  in  making  this  determination.  It 
may  refer  the  whole  matter  to  the  local  authorities,  under 
such  directions  as  it  may  deem  best  to -impose.  As  the  legis- 
lature could  have  defined  the  district  without  notice  to  the 
property  owners,  so  the  local  councils,  standing  in  the  place 

1.  Warren   v.    Grand    Haven,      503,  509;  Clay  v.  Grand  Rapids, 
30   Mich.  84,  29.  60   Mich.  451. 

2.  Detroit  v.  Daley,  68  Mich. 


487  THE  ASSESSMENT  ?  '•'•  \  1 

of  the  legislature,  may  likewise  determine  the  assessing  dis- 
trict without  notice  to  the  local  owners3.  The  council  must 
definitely  fix  and  determine  the  assessing  district.  This  is 
required  for  the  benefit  and  protection  of  the  owner  and 
others  having  interests  in  the  lands,  and  to  enable  the  assess- 
ing officers  to  lay  the  burden  upon  the  district  designated, 
in  the  proper  proportions.  The  assessment  becomes  a  lien 
upon  the  land;  and  the  parties  in  interest  have  a  right  to 
know  the  amount  and  extent  of  the  lien  created4.  The  dis- 
trict must  be  defined  before  the  assessment  is  made.  When 
this  is  not  done,  there  is  no  way  of  determining  whether  or 
not  the  assessors  are  interested  and  so  disqualified.  In  a 
street  opening  case,  unless  the  district  is  defined,  the  jury 
have  no  sufficient  basis  upon  which  to  determine  what  bene- 
fits shall  be  deducted  from  the  award  of  damages5.  When 
the  council  determines  the  limits  of  the  district,  which  the 
charter  requires  to  be  done  by  the  board  of  public  works, 
their  certificate  on  the  roll,  in  effect  adopting  the  district,  is 
sufficient9.  A  description  of  a  paving  district  as  being  all 
of  the  lots  and  parcels  of  land  fronting  upon  a  certain  street, 
between  certain  points,  is  sufficient7.  When  the  council  in- 
structs the  city  engineer  to  make  a  plat  of  the  assessing  dis- 
trict, and  then  adopts  the  plat,  it  is  a  sufficient  designation 
under  the  statute8.  It  is  competent  to  provide  that  any  sur- 
plus in  the  special  improvement  fund  shall  be  returned  to 
the  tax  payer  in  the  same  proportion  that  he  was  assessed ; 
and  an  action  will  lie  at  the  instance  of  the  tax  payer  there- 

3.  Voigt      v.      Detroit,      123  7.     Beniteau     v.     Detroit,     41 
Mich.   447.  Mich.   116. 

4.  Whitney    v.    Hudson    Vil-  8.     Auditor    General    v.    Cal- 
lage, 69  Mich.  189,  200.  kins,  136  Mich.  1,  5;  Walker  v. 

5.  Powers    Appeal,   29    Mich.  Detroit,  136   Mich.  6;   Da  vies  v. 
504,  511.  Saginaw,  87  Mich.  439;  Boehme 

6.  Shimmons  v.  Saginaw,  104  v.  Monroe  City,  106  Mich.  401. 
Mich.    512. 


§  345  THE  LAW  OF  TAXATION  488 

for9.  A  member  of  the  council  who  resides  within  the  dis- 
trict is  not  disqualified  from  voting  on  a  resolution  estab- 
lishing the  district10.  When  a  street  is  being  improved,  it 
is  not  necessary  that  a  lot  assessed  for  benefits  actually  front 
upon  the  street.  In  other  words,  when  the  assessment  is  to 
be  made  according  to  benefits,  the  assessing  district  may  in- 
clude property  which  does  not  touch  the  street11.  Includ- 
ing a  strip  of  land  300  feet  wide  on  each  side  of  a  street, 
within  the  district,  is  not  an  abuse  of  discretion  in  a  street 
opening  case12.  The  paving  of  several  streets  may  be  in- 
cluded within  one  district,  even  though  the  pavement  be  of 
different  widths,  if  the  estimates  and  specifications  show  the 
cost  on  each  street13.  Where  property  benefited  by  a  pro- 
posed improvement  is  omitted  from  the  district,  it  will  not 
avoid  the  special  assessment.  To  entitle  a  tax  payer  to  any 
relief,  he  should  tender  the  amount  that  ought  to  have  been 
assessed  against  him14. 

§345.     Exemptions.     Church  Property. 

The  purpose  of  general  taxation,  where  the  tax  is  appor- 
tioned according  to  the  true  value  of  the  property,  there  is 
no  practical  difficulty  in  making  an  assessment.  The 
buildings,  or  portions  exempt,  may  easily  be  separated  from 
the  non-exempt  property.  When  the  assessment  is  not 
according  to  value,  the  practical  difficulties  to  be  encountered 
may  be  considered  in  construing  an  act  of  the  legislature. 
The  motives  for  exempting  houses  of  religious  worship  from 

9.  Thayer    v.    Grand    Rapids,      Mich.   30. 

82    Mich.    398.  13.     Haley   v.    Alton,    152    111. 

10.  Corliss  v.  Highland  Park,  113;    Springfield    v.    Green,    120 
13fr  Mich.  152.  111.     269;     Adams     County     v. 

11.  Parsons  v.  Grand  Rapids,  Quincy,   130    111.    566. 

141  Mich.  467;  Goodrich  v.  De-  14.  Boussneur  v.  Detroit, 
troit,  123  Mich.  559.  153  Mich.  585. 

12.  Powers    v.    Detroit,    139 


4.VJ  THE  ASSESSMENT  §346 

general  taxation  is  obvious  and  commendable.  They  are 
regarded  as  having  a  claim  upon  public  benevolence;  and 
while  the  constitution  provides  that  "no  money  shall  be 
appropriated  or  drawn  from  the  treasury  for  the  benefit  of 
any  religious  sect  or  society,  theological  or  religious  sem- 
inary, nor  shall  property  belonging  to  the  state  be  appro- 
priated for  any  such  purposes,"  an  equally  wise  policy 
dictates  that  some  consideration  should  be  had  for  the 
public  benefit  which  they  bestow.  But  the  extent  and  man- 
ner of  the  encouragement  to  be  conferred  upon  religious 
associations,  by  exempting  their  property  from  taxation  or 
otherwise,  is  confided  by  the  organic  law,  subject  to  certain 
restrictions,  to  the  wisdom  of  the  legislature.  In  the  absence 
of  an  express  provision,  property  exempt  under  the  general 
tax  laws  will  not  be  held  exempt  from  a  special  assessment. 
The  convenience  of  the  proprietors  of  a  church,  and  its  sup- 
porters, are  as  much  promoted  as  that  of  other  citizens,  by  a 
street  improvement,  although  the  church  property  may  not 
be  rendered  rnore  productive  by  it.  In  fact,  the  actual  pro- 
ductiveness of  property  is  not  regarded  as  a  criterion  of  its 
value  in  the  assessment  of  any  species  of  taxes.  It  there- 
fore follows  that  church  property  is  not  exempt  from  special 
assessments16. 

§346.     Exemptions.     Public  Property. 

The  sound  principle  is  that  property  owned  by  a  state,  or 
by  the  United  States,  or  by  a  municipality,  for  public  uses 
is  not  subject  to  be  taxed  unless  so  provided  by  positive  legis- 
lation. Only  such  burdens  of  taxation  can  be  imposed  upon 
a  political  subdivision  of  the  state  as  is  expressly  provided 
by  law ;  an  implied  exemption  exists  for  such  property  as  is 

16.  Lcfevre  v.  Mayor,  etc.,  etc.,  of  New  York,  11  John  R. 
2  Mich.  587,  592;  In  re  Mayor,  77. 


§  347  THE  LAW  OF  TAXATION  490 

held  for  governmental  purposes.  Other  property  is  also 
exempt  from  taxation,  such  as  churches,  hospitals,  cemeteries 
etc.,  but  as  to  these  there  is  no  implied  exemption;  they  are 
strictly  the  property  of  private  corporations.  When  such 
property  is  mentioned  in  the  general  tax  law,  the  exemption 
applies  only  to  the  taxes  mentioned  in  the  general  law,  and 
not  to  those  which  are  of  a  private  and  local  character,  which 
are  made  according  to  benefits  derived.  Whenever  the  tax- 
ing power  seeks  to  impose  a  tax  upon  public  property,  the 
legislative  or  constitutional  authority  must  affirmatively 
appear17. 

§347.     Exemption.     Private  Property. 

The  municipality,  for  a  valid  consideration,  may  contract 
to  exempt  property  from  a  special  assessment  in  the  com 
struction  of  a  public  work;  as,  to  exempt  certain  property 
from  exemption  of  a  tax  for  building  a  sewer,  in  consider- 
ation of  a  release  of  right  of  way  for  the  sewer.  Another 
tax-payer  could  not  well  show  that  he  was  injured  by  this 
arrangement.  While  the  city  might  not  enter  into  a  con- 
tract to  exempt  the  property  for  all  time,  it  cannot,  as  to  the 
construction  of  the  work,  receive  the  right  of  way  under  such 
a  contract,  and  then  assess  the  property.  While  a  contract, 
or  a  portion  of  it,  may  be  ultra  vires,  yet  if  it  contain  nothing 
malum  prohibition,  or  malum  in  se,  the  legal,  divisible 
portion  at  least  will  be  enforced;  the  recipient  of  substantial 
benefits  of  a  partially  executed  contract  will  not  be  lieved 
from  the  obligation  to  perform  or  pay  that  part  which  he 


17.     C.   L.   §3830;   Big   Rapids  West    Middle    Dist,    45    Conn, 

v.    Supervisors,    99    Mich.    351;  462;    Polk    Co.    Bank    v.    Iowa, 

Worcester     Co.     v.     Worcester,  69    la.    29. 
116     Mass.     193;     Hartford     v. 


491  THE  ASSESSMENT  §§348,349 

can  perform  because  the  performance  of  a  small  portion  of 
it  may  be  beyond  his  powers18. 

£348.     Roll.    Residents  and  Non-Residents. 

Where  there  is  no  difference  in  the  notice  at  any  stage  of 
the  proceedings  that  is  to  be  given  residents  or  non-residents, 
a  requirement  of  an  ordinance  that  the  roll  shall  designate 
who  are  residents  and  who  are  non-residents,  will  be  deemed 
directory  merely.  Under  such  circumstances,  no  right  or 
interest  whatever  can  be  injuriously  affected  by  an  omission 
of  the  roll  to  make  such  statements19.  Where,  however,  only 
the  names  of  the  owners  of  property  are  required  to  be 
published,  and  not  a  description  of  the  premises,  a  mistake  in 
the  name,  or  omission  of  the  name  of  a  non-resident  owner, 
is  misleading  and  fatal  to  the  tax.  Then  such  a  requirement 
is  mandatory30. 

§349.     Roll.    Valuation. 

The  Constitutional  provision  of  §12,  Art.  XIV,  that  prop- 
erty shall  be  assessed  at  its  cash  value,  does  not  apply  to 
special  assessments21.  A  provision  that  the  special  assess- 
ment roll  shall  contain  the  valuation  of  the  property  assessed 
is  mandatory.  The  taxpayer  has  an  interest  in  such 
a  provision  being  complied  with.  The  commissioners  may 
not  be  precluded  from  making  their  assessment  with  some 
reference  to  the  valuation ;  and  as  the  common  council  review 
their  action,  and  hear  and  decide  complaints  of  inequality 

18.    Sec     §57,     supra,     for     a          19.  Williams    v.     Detroit,    2 

further      discussion.        Coit      v.  Mich.  560,    581. 

Grand    Rapids,    115    Mich.    493,         20.  Hill  v.  Wanell,  87  Mich. 

495.     The  general  principle  that  135. 

a    municipality    cannot    bargain          21.  Woodbridge  v.  Detroit,  8 

away   its    legislative    powers    is  Mich.  274;   Motz  v.   Detroit,  18 

also  found  in  Miller  v.  Kalam-  Mich.  495. 
azoo,  140  Mich.  494. 


§  350  THE  LAW  OF  TAXATION  4:92 

and  injustice,  the  respective  valuations  of  lots  constitute 
important  information  to  be  possessed  by  them  when  pro- 
ceeding to  perform  this  duty.  All  legislative  provisions,  in 
such  cases,  should  be  regarded  as  mandatory  where  they 
seem  to  be  adopted  for  the  protection  of  the  tax  paper,  and 
may  have  an  important  influence  in  shielding  him  from  un- 
equal and  unjust  taxation22.  It  is  necessary  that  the  pro- 
ceedings show  the  value  of  the  property,  and  that  it  appear 
that  the  amounts  assessed  are  not  more  than  the  value  of 
the  improvement,  and  upon  what  basis  the  assessors  arrived 
at  their  determination23.  Where  the  statute  provides  that  a 
special  assessment  shall  not  exceed  five  per  cent  of  the 
valuation  of  the  property  as  assessed,  in  any  one  year,  all 
in  excess  of  that  sum  must  be  charged  to  the  municipality, 
which  will  be  obliged  to  pay  it24.  Where  parcels  of  land  as 
described  on  the  last  assessment  roll  extend  beyond  the 
district,  so  that  one  parcel  is  partly  within  and  partly  with- 
out the  district,  it  is  proper  for  the  roll  to  show  the  pro- 
portionate value  of  the  part  within  the  district  to  the  whole 
parcel25.  An  entire  lot  or  parcel  may  be  wholly  within  two 
assessing  districts ;  but  the  total  tax  on  both  districts  can- 
not exceed  the  limit  imposed  by  statute,  based  upon  the 
assessed  valuation  of  the  property26. 

§350.     Roll.    Amounts  to  be  Raised  Each  Year. 

The  statute  relating  to  cities  of  the  fourth  class  contem- 
plates that  an  assessment  may  be  divided  into  not  more  than 
five  installments,  one  of  which  shall  come  due  every  year; 

22.  Steckert  v.  East  Saginaw,      liss  v.  Highland  Park/132  Mich. 
22 'Mich.  104,  115;  Beidler  Mfg.      152. 

Co.  v.  Muskegon,  63  Mich.  44.  25.     Boehme  v.  Monroe  City, 

23.  White     v.     Saginaw,     67      106   Mich.  401,  407. 

Mich.   33,   41;    Detroit   v.   Daly,          26.     Nowlen   v.    Benton    Har- 
68  Mich.  503,  510.  bor,    134    Mich.   401,   405. 

24.  C.   L.    §§2856,   2835;    Cor- 


493  THE  ASSESSMENT  §  351 

and  that  special  assessment  rolls  shall  be  made  for  each  year 
as  the  same  shall  fall  due27.  The  statute  relating  to  in- 
corporated villages  confers  no  authority  to  extend  an  assess- 
ment over  a  number  of  years.  Any  surplus  in  the  expense 
above  the  amount  authorized  to  be  levied  must  be  paid  by  the 
municipality38.  The  warrant  may  provide  for  collection 
fees29.  In  street  opening  cases,  under  the  charter  of 
Detroit,  the  entire  amount  levied  for  benefits  must  be  spread 
the  first  year30. 

§351.     Roll.     Miscellaneous. 

The  assessment  roll  must  conform  to  the  requirements  of 
the  ordinance  or  charter.  But,  nevertheless,  if  jurisdiction 
was  acquired  by  the  council,  no  individual  can  complain  of  an 
error  that  does  not  injuriously  affect  him.  An  omission  of 
any  sign  for  dollars  over  the  column  representing  the  assess- 
ment is  not  necessarily  fatal31.  Where,  by  a  clerical  error 
which  is  apparent,  figures  are  placed  in  a  column  under  the 
wrong  heading,  it  will  not  invalidate  the  holl32.  Neither 
will  a  mistake  whereby  one  parcel  is  twice  assessed,  and  an- 
other parcel  left  off  the  roll  entirely,  avoid  the  tax  of  the 
owner  of  that  piece  when  the  owner  of  the  omitted  parcel 
pays  one  of  the  assessments,  since  the  real  owner  is  not 
injured  thereby33.  The  roll  must  show  expressly  that  the 
assessment  is  made  on  the  basis  which  the  charter  provides. 
An  omission  to  show  the  principle  of  the  assessment  is 
not  cured  by  a  charter  provision  that  the  roll,  after  endorse- 

27.  Boehme  v.  Monroe  City,      Mich.  30. 

106  Mich.  401,  406.  31.     Williams     v.     Detroit,     2 

28.  Corliss        v.        Highland      Mich.  560,  579. 

Park,   132    Mich.    152,   159;   con  32.     Beecher     v.     Detroit,     92 

struing  C.  L.  Chap.  87.  Mich.  268.  274. 

29.  Warren  v.  Grand  Haven,  33.     Gregory    v.    Ann    Arbor, 
30    Mich.   24.  127   Mich.   454,  459. 

30.  Powers    v.     Detroit,     139 


f  352  THE  LAW  OF  TAXATION  494 

ment,  shall  be  prima  facie  evidence  of  the  regularity  of  the 
tax.  It  must  also  appear  some  where  of  record  that  the 
benefits  to  the  whole  property  included  within  the  taxing 
districts  will  equal  the  cost  of  the  proposed  improvement 
assessed  against  this  district.  Any  excess  of  costs  over 
benefits  must  be  borne  by  the  city34.  It  is  not  necessary  that 
the  roll  show  the  width  of  the  street  intersections,  when 
their  width  appears  from  the  record  of  the  proceedings35. 
A  tax  roll,  unsigned  by  the  assessors,  is  void,  and  is  not 
cured  by  being  confirmed  by  the  council36. 

1 352.     Assessment  by  Frontage. 

The  provisions  of  the  constitution  requiring  assessments 
to  be  made  according  to  a  uniform  rule  at  the  cash  value  of 
the  property,  and  for  equalization,  does  not  apply  to  special 
assessments.  The  method  of  the  levy  of  such  a  tax  is  in 
the  discretion  of  the  legislature.  As  this  description  of  tax 
does  not  come  within  the  constitutional  limitations  referred 
to,  and  the  power  of  the  legislature  is  plenary,  valuation  in 
the  property  taxed  is  not  a  necessary  element  in  the  appor- 
tionment of  the  tax.  The  apportionment  may  be  based  on 
valuation  or  not.  This  is  for  the  legislature  to  determine, 
which  alone  has  power  to  prescribe  the  rule  of  apportion- 
ment. As  there  is  nothing  in  the  power  of  taxation  requir- 
ing it  to  be  apportioned  in  any  particular  way,  the  rule  by 
which  the  amount  of  tax  is  to  be  paid  by  each  tax  payer 
cannot  be  made  a  test  of  the  taxing  power.  There  is  there- 
fore no  legal  reason  why  an  assessment  according  to  front- 
age is  not  valid.  The  abutting  owner  may  either  be  required 
to  pave  the  street  opposite  his  premises,  or  his  frontage  may 

34.  Adams    v.    Bay    City,    78      Mich.    6. 

Mich.  211,  214.  36.     Thompson  v.  Detroit,  114 

35.  Walker    v.     Detroit,     136      Mich.   502. 


495  THE  ASSESSMENT  >  '•'>'>'•'• 

be  used  to  determine  the  percentage  of  the  whole  cost  of  the 
improvement  which  he  shall  pay37.  It  is  not  competent, 
however,  for  the  municipality  to  require  the  entire  cost  of 
paving,  grading,  etc.,  opposite  each  lot,  to  be  paid  by  the 
lot  owner.  This  cost  may  vary  greatly  in  different  localities, 
and  therefore  cannot  be  said  to  conform  to  any  uniform 
rule.38.  Because  a  rairoad  company  own  a  right  of  way  in 
the  street,  it  does  not  follow  that  the  company  should  be 
assessed  as  owning  a  frontage  of  the  street39. 

§353.     Assessment  According  to  Benefits. 

It  is  competent  for  the  legislature  to  authorize  municipal 
corporations  to  assess  the  whole  or  any  portion  of  the 
expense  of  these  local  improvements  upon  the  property 
deemed  to  be  particularly  benefited  thereby,  in  proportion 
to  the  benefit  received,  if,  in  the  judgment  of  the  legislature, 
that  rule  of  apportionment  is  most  just  and  equitable.  There 
is  nothing  in  the  constitution  which  expressly  forbids  it, 
and  nothing  in  the  nature  of  the  powers  of  taxation  which 
is  inconsistent  with  it40.  Where  the  legislature  has  pre- 
scribed the  rule  by  which  apportionments  shall  be  made,  the 
council  cannot  lay  down,  or  direct  what  rule  the  assessors 

37.  Constitution  of  1850,  Art.  a  maximum  sum  per  foot  front- 
XIV,  55511,  12,  13;  Beecher's  age.  Lipps  v.  Philadelphia,  38 
Constitution  of  1908,  Art.  X,  Pa.  St.  503;  Philadelphia  v. 
5553,  7,  8;  Woodbridge  v.  De-  Tryon,  35  Pa.  St.  401.  In 
troit,  8  Mich.  274;  Motz  v.  De-  Clapp  v.  Hartford,  35  Conn.  66, 
troit,  18  Mich.  495;  Williams  v.  an  assessment  by  frontage  is 
Detroit,  2  Mich.  560;  Sheley  v.  held  unreasonable  and  void. 
Detroit,  45  Mich.  431;  Kalama-  38.  Motz  v.  Detroit,  18  Mich, 
zoo  v.  Francoise,  115  Mich.  554;  495,  256;  Sheley  v.  Detroit,  45 
Ca*>  Farm  Co.  v.  Detroit,  124  Mich.  431,  433. 
Mich.  426.  The  power  to  assess  39.  Boehme  v.  Monroe  City, 
benefits  according  to  the  front-  106  Mich.  401,  406. 
age  of  the  property  upon  the  40.  Hoyt  v.  East  Saginaw,  19 
improvement  is  generally,  but  Mich.  39,  43;  Warren  v.  Grand 
not  uniformly,  recognized.  Haven,  30  Mich.  24.  31;  Beech- 
Some  states  limit  this  right  to  er  v.  Detroit,  92  Mich.  268. 


§  353  THE  LAW  OF  TAXATION  496 

shall  follow  further  than  the  prescribed  rule.  If  the  statute 
prescribes  a  rule  according  to  benefits,  the  council  cannot 
vary  that  rule  in  any  particular41.  In  an  early  case,  the 
court  intimated  that  a  tax  laid  apparently  without  regard  to 
the  value  or  use  of  the  property,  strictly  in  proportion  to  the 
frontage  on  the  street,  raised  a  strong  inference  that  it  could 
not  have  been  spread  according  to  benefits,  as  directed  by 
the  ordinance42.  However,  the  right  to  assess  lands  for 
local  improvements  does  not  depend  upon  the  use  to  which 
the  owner  may  choose  to  put  the  lands,  nor  upon  whether  he 
may  see  fit  to  put  them  to  any  use.  The  benefits  are  to  be 
determined  by  the  assessing  officers,  and,  in  the  absence  of 
fraud,  their  determination  is  conclusive43.  Neither  the  legis- 
lature nor  the  council  have  any  power  to  impose  a  tax  upon 
property  in  excess  of  the  benefits  which  it  is  supposed  to 
receive  from  the  improvement.  The  sole  ground  for  impos- 
ing a  part  or  all  of  the  cost  of  a  public  improvement  upon  one 
part  of  the  municipality  is  that  the  part  burdened  with  the 
cost  receives  corresponding  benefits,  which  the  general  public 
does  not  receive.  Any  provision  determining  arbitrarily, 
without  reference  to  benefits  received,  what  percentage  of  the 
cost  the  private  owners  shall  pay,  is  unconstitutional  and 
the  proceedings  had  there  under  void44. 

Where,  however,  the  council  orders  a  certain  sum  spread 
upon  property  benefited,  the  inference  is  that  the  property 
is  benefited  to  the  amount  specified;  and  a  statute  is  not 
unconstitutional  which  does  not  limit  the  amount  to  be 
assessed  to  the  benefits  derived  because  such  limitations  will 


41.  Steckert  v.  East  Saginaw,  Furniture  Co.  v.  Grand  Rapids, 
22    Mich.    104,    114.  92     Mich.     564;     Hoyt    v.     East 

42.  Warren  v.  Grand  Haven,  Saginaw,  19  Mich.  39. 

30    Mich.   24,   31.  44.     Detroit     v.      Chaffee,      112 

43.  Powers  v.  Grand  Rapids,  Mich.  588,  construing  Local  Act 
98     Mich.     393;     Grand     Rapids  No.  467,  of  Public  Acts  of  1895. 


407  THE  ASSESSMENT 

be  inferred45.  The  statute  will  not  be  unconstitutional  be- 
cause it  does  not  fix  any  standard  for  determining  how  much 
shall  be  paid  by  the  land  owner,  and  how  much  by  the 
municipality.  A  provision  that  the  tax  shall  be  assessed 
according  to  benefits,  necessarily  limits  the  amount  to  be 
assessed ;  and  the  determination  by  the  council  of  the  amount 
of  benefits  to  the  property  is  final  and  conclusive46.  It  is  not 
necessary  that  the  assessing  board  determine  the  value  of  a 
lot  before  and  after  the  improvement  is  made.  This  would 
be  liable  to  lead  to  confusion  where  the  council  determined 
the  total  benefits  to  be  assessed,  and  the  assessors  determined 
the  amount  to  be  assessed  to  each  parcel.  This  would 
necessitate  two  valuations  by  two  boards,  who  might  not 
agree47.  It  is  competent  for  the  legislature  to  provide  for 
the  opening  of  private  roads  or  alleys;  but  it  is  doubtful  if 
it  has  the  power  to  provide  for  assessing  benefits  therefor 
upon  parties  who  do  not  petition  for  the  road48.  It  is  com- 
petent to  assess  an  entire  lot  in  two  different  assessment 
districts  if  the  total  tax  does  not  exceed  the  limitation  fixed 
by  statute49.  The  apportionment  of  the  tax  upon  the  parcels 
benefited  need  not  necessarily  be  made  by  the  council.  Such 
an  apportionment  requires  for  its  proper  performance  an 
examination  of  the  several  premises  in  detail ;  as  it  involves 
only  administrative  functions,  this  function  may  be  delegated 
to  the  board  of  assessors60.  The  action  of  the  assessing 
board  in  making  the  apportionment  of  benefits  will  not  be 


45.  Goodrich   v.    Detroit,   123  Co.  v.    Grand   Rapids,  92   Mich. 
Mich.   159.  564,   570. 

46.  Voigt     v.      Detroit,     123  48.     Schehr     v.      Detroit,     45 
Mich.      547;      in      Brewster     v.  Mich.  626. 

Springfield,    97    Mass.     152,    an  49.     Nowlen    v.    Benton    Har- 

assessment    based    upon    values  bor,  134  Mich.  401,  405. 

exclusive    of    the    improvements  50.     Warren  v.  Grand  Haven, 

was   sustained.  30    Mich.   24,  29. 

47.  Grand    Rapids    Furniture 

(82) 


§  354  THE  LAW  OF  TAXATION  498 

reviewed  by  the  courts  except  for  fraud,  or  mistake  amount- 
ing to  fraud.  The  certificates  of  assessment  will  be  deemed 
conclusive51.  When,  however,  it  conclusively  appears  that 
the  property  could  not  have  been  assessed  according  to 
benefits,  as  prescribed,  the  court  will  set  aside  the  tax;  as 
where  property  at  a  distance  from  a  sewer  was  assessed  at 
the  same  rate  as  lots  fronting  on  the  sewer52.  An  assess- 
ment for  benefits  received  made  by  the  council  is  valid, 
although  the  councilmen  are  all  tax  payers  of  the  city  in 
which  the  district  is  situated,  and  to  that  extent  interested53. 

§354.     Assessment  According  to  Area. 

The  idea  that  underlies  statutes  fixing  a  method  of  appor- 
tioning taxes,  often  by  frontage,  is  that  the  benefits  to  the 
abutting  lots  is  generally  in  proportion  to  their  respective 
fronts,  and  that  as  a  rule,  this  principle  of  apportionment  is 
more  just  than  any  other.  There  is  a  basis  of  truth  in  this 
idea,  and  it  is  so  generally  accepted  that  assessments  for 
street  improvements  are  now  more  generally  apportioned  by 
frontage  than  by  any  other  standard.  An  assessment,  how- 
ever, levied  without  regard  to  actual  or  probable  benefits  is 
unlawful,  as  constituting  an  attempt  to  take  private  property 
for  public  uses.  While  the  legislature  may  prescribe  the 
rule  for  the  apportionment  of  benefits,  its  power  in  this 
regard  is  not  unlimited.  The  rule  must  at  least  be  one  which 
it  is  legally  possible  may  be  just  and  equal  as  between  the 
parties  assessed.  A  provision  requiring  the  assessment  to 
be  according  to  the  superficial  area  of  premises,  where  the 
only  discretion  left  in  the  local  officers  is  that  of  determining 

51.     Shimmons      v.      Saginaw,  639. 

104  Mich.  512;  Davies  v.  Sagin-  52.     Auditor         General         v. 

aw,    87    Mich.    439;    Powers    v.  O'Neal,   143   Mich.   343. 

Detroit,    139    Mich.    30;    Walker  53.     Brown    v.     Saginaw,    107 

v.    Detroit,    138    Mich.    538    and  Mich.   643. 


4!>'J  THE  ASSESSMENT  §355 

the  boundaries  of  the  district,  cannot  legally  be  just  or 
equitable.  If,  however,  the  certificate  of  the  assessing 
officers  shows  that  such  an  assessment  is  in  fact  according  to 
the  benefits  received,  the  assessment  will  be  sustained54. 

j-355.     Hearing  or  Review. 

Persons  whose  property  is  to  be  taken  under  summary  tax 
proceedings  are  entitled  as  a  right  to  be  heard  at  some  stage 
in  the  proceedings  before  the  tax  shall  become  an  established 
charge  against  them  or  their  property.  Notice,  or  at  least 
the  means  of  knowledge,  is  an  essential  element  of  every 
just  proceeding  which  affects  the  rights  of  persons  or  prop- 
erty65. The  validity  of  the  special  assessment  does  not 
depend  upon  the  fact  as  to  whether  or  not  the  members  of  the 
council  have  viewed  the  property  assessed,  or  the  assess- 
ment district,  with  reference  to  that  particular  action.  Alder- 
men are  presumed  to  have  a  general  knowledge  of  the 
geography  and  typography  of  their  own  city,  and  to  know 
the  location  and  condition  of  the  streets.  They  are  supposed 
to  act  upon  this  general  knowledge,  and  upon  information 
furnished  by  committees  and  agencies  whose  duty  it  is  to  col- 
lect data  and  arrange  details58.  The  hearing  need  not  be 
before  the  assessment  is  made;  it  is  sufficient  that  at  some 
stage  a  hearing  is  had,  either  before  the  assessors  or  some 
authorized  board  of  review57.  Where  the  statute  requires  a 
council  to  review  the  roll  and  hear  objections,  two  weeks 


54.     Thomas  v.  Gain,  35  Mich.  Louis    v.    Peters,    36    Mo.    456; 

155,     162;     Levee     taxes     were  Walker    v.    Detroit.    138    Mich, 

sustained  when  assessed  accord-  639. 

ing    to    the    superficial    area,    in  55.     Thomas  v.  Gain,  35  Mich. 

Daily    v.    Swop,    47    Miss.    367;  155,  164. 

McGehee  v.  Malthis,  21  Ark.  40;  56.     Davies     v.     Saginaw,     87 

Wallace  v.  Shelton,  14  La.  Ann.  "Mich.   439. 

498.      Sewer    taxes     so    appor-  57.     Beecher     v.     Detroit.     93 

tinned     were     sustained     in     St.  Mich.  268.  274. 


§  356  THE  LAW  OF  TAXATION  500 

publication  of  such  notice  is  a  reasonable  time  and  notice. 
It  is  competent  for  the  legislature  to  leave  the  time  and  place 
of  hearing  objections  to  be  fixed  by  the  council58.  A  hear- 
ing before  a  committee,  whose  report  is  adopted  by  the 
council,  is  sufficient59. 

§356.     The  Certificate  on  the  Roll. 

The  certificate  should  show  that  the  assessment  made  upon 
the  lots  was  made  according  to  the  benefits  they  were  ex- 
pected to  receive.  It  is  insufficient  to  state  that  the  tax 
levied  pursuant  to  a  resolution  or  ordinance,  although  that 
may  have  correctly  stated  the  proper  way  to  levy  the  assess- 
ment. Such  a  certificate  is  not  equivalent  to  a  distinct  state- 
ment that  the  tax  is  levied  upon  the  basis  established  by  the 
ordinance.  The  roll  is  the  basis  of  authority  under  which 
titles  may  be  divested,  and  it  cannot  be  permitted  that  a 
jurisdictional  document  of  this  nature  should  speak  in  doubt- 
ful terms.  It  has  been  usual  to  provide  by  statute  that  the 
assessor's  certificate  should  show,  by  express  recitals,  that 
the  statute  has  been  complied  with ;  and  these  provisions  are 
mandatory.  The  reasons  requiring  the  assessor's  certificate 
to  show  the  manner  in  which  they  have  performed  their  duty 
are  much  more  imperative  in  the  case  of  special  and  excep- 
tional taxes  than  they  are  in  other  cases,  because  the  general 
taxes  are  always  apportioned  according  to,  or  with  refer- 
ence to,  market  values,  which  afford  standards  having  some 
element  of  certainty.  The  difference  of  opinion  regarding 
the  proper  basis  on  which  local  assessments  should  be  levied, 
and  the  difficulty  in  determining  from  the  result  in  any  par- 
ticular case,  that  the  legal  standard  has  been  adopted,  are 


58.     Auditor  General  v.  Hoff-          59.     Brown    v.    Saginaw,    10T 
man,  132  Mich.  198.  Mich.  643. 


501  THE  ASSESSMENT  §356 

likely  to  tempt  assessors  to  make  thess  assessments  after 
their  own  notions  of  what  ought  to  be  the  rule,  unless  they 
are  required  to  state  distinctly  under  their  official  oath,  the 
grounds  of  their  action  in  charging  a  particular  person  or 
lot  a  specified  sum,  and  thus  showing  affirmatively  that  the 
law  has  been  complied  with60.  The  proceedings  must  show 
the  basis  upon  which  the  assessment  is  made,  and  that  the 
property  is  assesed  no  more  than  the  value  of  the  improve- 
ments81. Where  the  board  of  public  works  is  required  to 
certify  on  the  roll  that  each  parcel  "is  benefited  specially 
by  such  improvement  to  the  amount  of  the  assessment 
thereon,"  a  certificate  showing  that  the  assessment  is  made 
according  to  benefits  is  a  compliance  therewith62.  A  recital 
that  the  assessment  is  made  according  to  benefits,  is  con- 
clusive, in  the  absence  of  fraud63.  But  the  assessment  will 
be  reviewed  by  the  court  when  it  conclusively  appears  that 
it  was  not  made  as  it  recites ;  as  where  a  rear  tier  of  lots  are 
assessed  at  the  same  ratio  as  other  lots  fronting  on  a  sewer84. 
When  the  assessors  are  required  to  enter  the  valuation  of 
the  property  on  the  roll,  as  shown  by  the  last  general  assess- 
ment roll,  some  of  the  parcels  on  such  last  roll  may  include 
more  land  than  lies  within  the  assessment  district.  In  such 
a  case,  the  certificate  should  show  that  the  valuation  placed 
upon  the  portion  within  the  district  was  proportionate  to 
the  value  of  the  whole  parcel  so  fixed  in  such  last  roll85.  A 
certificate  signed  by  the  president  and  secretary  of  the  board 
of  assessors  is  sufficiently  attested88.  A  certificate  not  signed 

60.  Warren  v.  Grand  Haven,  Mich.    659;    Walker   v.    Detroit, 
3&  Mich.  24,  31;  Grand  Rapids  138   Mich.   639;   Walker  v.    De- 
v.  Blakely,  40  Mich.  367.  troit,  138  Mich.  538. 

61.  White     T.     Saginaw,     67  64.     Auditor         General         v. 
Mich.   33,   41;   Detroit  v.   Daly,  O'Neal,  143  Mich.  343. 

68  Mich.  503,  510.  65.     Boehme  v.  Monroe  City, 

62.  Nelson    v.    Saginaw,    106      106  Mich.  401,  407. 

Mich.  659.  66.     Duffy     v.     Saginaw,     106 

63.  Nelson    v.    Saginaw,    106      Mich.  335,  339. 


§  356  THE  LAW  OF  TAXATION  502 

by  the  assessors,  however,  renders  the  tax  void,  although 
such  roll  was  confirmed  by  the  council67. 

Form  of  Certificate  of  Board  of  Assessors. 

We,  the  undersigned,  constituting  the  Board  of  Assessors 
of . . . . , city,  Michigan,  hereby  certify  and  re- 
port that  in  pursuance  of  the  instructions  of  the  counsel  of 

said  city  on  the day  of ,  hereby 

certify  and  report  that  we  have  examined  the  premises  in- 
cluded in special  assessment  district,  of  the  city 

of ,  and,  as  instructed  by  common  counsel 

thereof,  have  made  a  special  assessment  roll  hereto  attached, 
entering  and  describing  therein,  all  premises,  lots  and  par- 
cels of  land  in  said  assessment  district,  the  valuation  thereof 
as  assessed  for  state  and  county  taxation  on  the  ward  rolls 

of  said  city  for  the  year  of „  and  did  assess  to 

each   lot  or  parcel  of  land  such  relative  portion   of  said, 

dollars,  directed  to  be  levied  by  us,  as  the 

benefit  of  each  particular  tract  or  parcel  of  land  for  the 
entire  benefits  in  said  district.  (If  the  assessment  is  ordered 
according  to  frontage,  use  the  following,  and  did  assess  to 

each  lot  or  parcel  of  land  such  relative  portion  of 

dollars  directed  to  be  levied  by  us  as  the  length  of  front  of 
such  premises  abutting  upon  the  improvement  bore  to  the 
-whole  frontage  of  all  the  lots  to  be  assessed  by  us.)  We  find 
in  no  lots  which,  on  account  of  their  shape  or  size,  would 
equitably  call  for  a  different  assessment.  That  we  have  on 
said  rolls  set  our  own  appraised  value  of  tracts  not  on  the, 
ward  rolls  of  said  city  at  all,  which  we  have  appraised  amd 
what,  in  our  best  judgment,  we  believed  to  be  severally  their 
true  cash  value  and  not  their  value  at  a  forced  sale  (give  the 

67.     Thompson  v.  Detroit,  114      Mich.   502. 


THE  ASSESSMENT 

numbers  and  descriptions  so  placed  on  the  roll.)  We  have 
placed  on  our  own  appraised  values  of  tracts  and  parcels  of 
land  not  on  said  ward  rolls  as  assessed  in  the  foregoing 
special  assessment  rolls,  but  included  with  and  assessed  to- 
gether with  other  lands  and  tracts,  not  in  said  paving  district 
and  not  benefited  by  the  proposed  improvement;  the  ap- 
praised valuation  of  such  portions  of  said  descriptions  as 
were  within  special  assessment  district  were  arrived  at  by  us 
in  the  following  manner;  that  part  of  the  tract  or  parcel  of 
land  within  the  paving  district  was  appraised  of  such  propor- 
tion of  the  sum  so  assessed  on  ward  rolls  as  we  judged  the 
value  of  the  part  within  said  district  compared  to  the  value 
of  the  whole  part  assessed  on  said  ward  rolls.  The  several 
amounts  assessed  against  each  description,  the  amounts  to 
be  paid  by  the  owners  of  each  tract  or  parcel  of  land,  and 
the  amount  to  be  paid  out  of  the  general  fund  of  the  city 
where  the  tax  herein  assessed  and  exceeds  twenty-five  per 
cent  of  the  said  valuation,  all  appear  under  their  appropriate 
columns.  We  have  apportioned  the  cost  of  the  intersections 
of  streets  and  alleys  to  the  said  city. 

Dated,  this day  of 


Board  of  Assessors. 

Form  of  Resolutions  Approving  Roll. 

Whereas,   this  counsel  has  considered  all  the  objections 

made  to  the  special  assessments  levied  upon  special 

district  No of  the  city;  and  have  made  all  necessary 

corrections  in  its  judgment  that  ought  to  be  made;  there- 
for, resolve  that  the  same  shall  be,  and  hereby  is  confirmed 
in  all  respects. 


§§357,358  THE  LAW  OF  TAXATION  504 

It  is  further  ordered  that  a  copy  of  the  said  roll  be  pre- 
pared by  the  clerk  of  this  city  and  be  delivered  to  the  city 
collector,  the  same  to  be  collected  sixty  days  from  this  date; 
and  tha>t  the  city  clerk  shall  endorse  upon  the  original  assess- 
ment roll  his  certificate  shotting  the  date  of  the  confirmation 
thereof  by  this  counsel;  said  clerk  shall  attach  his  warrant  to 
a  certified  copy  of  said  special  assessment  roll  therein  com- 
manding the  city  treasurer  to  collect  from  each  of  the  per- 
sons assessed  on  said  rolls  the  amount  of  money  assessed  to 
and  set  opposite  his  name  therein;  and  in  case  any  persons 
name  on  said  roll  shall  neglect  or  refuse  to  pay  his  assess- 
ment on  demand,  then  to  levy  to  collect  the  same  by  distress 
and  sale  of  the  goods  and  chattels  of  such  persons  and  re- 
turn said  roll  and  warrant  with  his  doings  thereof,  within 
sixty  days  from  the  date  of  the  said  warrant. 

§357.     Confirmation  of  Roll. 

The  council,  acting  as  a  board  of  review,  cannot  confirm 
a  special  assessment  until  it  is  certified  to  them  by  the  asses- 
sors68. The  a'doption  of  a  roll  by  the  counsel,  as  reported 
to  it  by  the  city  engineer,  is  a  sufficient  confirmation69. 

§358.     Vacating  Assessments. 

Where  a  municipality  lets  a  contract  for  a  grossly  ex- 
travagant price  and  permits  fictitious  items  of  expense  to 
be  included  in  the  assessment,  it  will  operate  as  a  fraud  upon 
the  property  owners,  and  equity  will  set  the  assessment 
aside70.  In  general,  however,  the  court  does  not  interfere 
with  the  action  of  the  authorized  agents  of  the  municipality 

68.  Thompson  v.  Detroit,  114  70.     See      Collateral      attack, 
Mich.  502.  J438,   supra.     Dixon   v.   Detroit, 

69.  Auditor  General  v.  Hoff-  86  Mich.  516;  In  re  Livingston, 
man,  132  Mich.  198.  121  N.  Y.  94. 


",or,  THE  ASSESSMENT  ^  -'5.V.' 

when  acting  within  the  power  granted  by  the  legislature 
except  when  there  is  a  want  of  jurisdiction  in  the  proceed- 
ings. The  fact  that  the  work  and  material  is  not  such  as 
is  called  for  by  the  contract  will  be  no  defence  to  the  con- 
tract71. 

£359.     Reassessment. 

When  the  original  assessment  is  void,  a  new  assessment 
may  be  made  if  authorized  by  statute.  If  the  difficulty  is  that 
the  sums  assessed  did  not  constitute  a  just  and  equitable 
charge  for  public  purposes  upon  the  property  upon  which 
it  was  sought  to  be  imposed,  the  legislature  could  not  make 
it  such  a  charge.  If,  however,  the  defect  consists  in  some 
irregularity  of  proceeding,  or  in  some  oversight  in  the  law 
itself,  in  consequence  of  which  a  just  and  equitable  claim 
fails  to  be  legally  imposed,  the  legislature  may  retrospectively 
supply  the  oversight  or  cure  the  irregularity.  Thus,  where 
no  apportionment  was  provided  in  the  act  under  which  the 
cost  of  an  improvement  is  sought  to  be  assessed,  the  legisla- 
ture may  provide  for  a  new  assessment72.  But  where  a  part 
of  the  taxes  were  paid  under  the  first  assessment,  the  munici- 
pality cannot  thereafter  decrease  its  share  and  add  to  the 
share  of  those  who  have  not  paid73.  If  a  contract  for  paving 
is  valid,  but  the  assessment  invalid,  the  municipality  is  bound 
by  the  terms  of  its  contract  as  first  made.  Although  the 
power  to  reassess  may  be  granted  by  a  special  act  of  the 
legislature,  such  act  cannot  cut  down  the  amount  of  the 
original  contract74.  When  a  special  assessment  is  set  aside 
and  a  new  one  ordered,  a  land  owner  cannot  complain  of 

71.  Dixon      v.      Detroit,      86         73.     White     v.     Saginaw,     67 
Mich.   516;   Motz  v.   Detroit,  18      Mich.  33. 

Mich.  515.  74.     Whitely    v.    Lansing,    17 

72.  Brevoort    v.    Detroit,    24      Mich.  131. 
Mich.  322,  326. 


§  359  THE  LAW  OF  TAXATION  506 

lack  of  notice  of  the  first  assessment.  Where  there  is  statu- 
tory authority  for  rescinding  an  invalid  assessment,  the  coun- 
cil may  do  so  by  a  majority  vote,  although  it  requires  a  two- 
thirds  vote  to  levy  the  assessment76.  Where  an  assessment 
is  excessive,  a  new  roll  should  be  made;  and  if  there  is  no 
provision  for  meeting  the  part  so  dropped  off  as  excessive, 
the  municipality  must  pay  such  sum76.  If  the  assessment 
is  void  because  of  a  defective  certificate  of  apportionment  of 
the  amount  to  be  raised  by  the  lot  owners  and  the  city,  the 
council  may  correct  the  certificate  and  order  a  new  assess- 
ment, though  the  statute  only  provided  for  a  new  assess- 
ment in  case  the  first  was  set  aside  by  the  court.  The  evi- 
dent intent  of  the  legislature  was  that  the  assessment  should 
not  fail  because  the  council  had  not  followed  the  statute77. 
If  the  description  in  the  first  assessment  is  too  indefinite 
to  be  valid,  the  tax  cannot  be  reassessed  upon  the  corrected 
description,  since  no  jurisdiction  was  acquired  in  the  first 
instance78.  Where  the  specifications  of  a  sewer  are  changed, 
and  a  contract  for  the  changed  specifications  not  readvertised 
for  bidders,  the  assessment  therefor  is  invalid;  the  legisla- 
ture may,  however,  provide  a  means  for  determining  the 
benefits  received  in  such  a  case79. 


75.  Townsend     v.     Manistee,  Mich.   572,   575. 

88   Mich.   408.  78.     Auditor         General         v. 

76.  Corliss  v.  Highland  Park,  Smith,   125   Mich.   576. 

132  Mich.  152,  160.  79.     W.     F.     Stewart     Co.     v. 

77.  Smith     v.      Detroit,     180  Flint,  147  Mich.  697. 


CHAPTER  XXII. 
THE  CONTRACT.  LIABILITY,  ETC. 


5360.  Bids. 

{361.  Irregularities  in  Accepting  Bids. 

5362.  The  Contract. 

§363.  The  Contract.     Extras. 

5364.  Authority  of  Engineer. 

5365.  Non-performance  of  Contract. 

5366.  Stipulated  Damages. 

5367.  Materials  in  Street. 

5368.  Primary  Liability  for  The  Work. 

5369.  Bonds. 

Form  of  Resolution  Authorizing  Bonds. 

(See  appendix  A.) 

5370.  The  Record. 

5371.  Presumptions. 

5372.  Qualifications  of   Electors. 

5373.  Delegated  Authority. 

5374.  Ratified  Acts. 

5375.  Healing  Acts. 

5376.  Estoppel. 


§360.     Bids. 

The  statutory  provision  requiring  contracts  to  be  let  to 
the  lowest  bidder  was  intended  to  prevent  any  action  what- 
ever whereby  contractors  could  make  private  arrangements 
with  a  council  for  payment  of  the  work  to  be  done.  There- 
fore, the  council  would  be  violating  the  intent  of  that  pro- 
vision should  it  afterwards  on  a  failure  of  the  contractor  to 
complete  his  work  according  to  his  contract,  undertake  to 
pay  a  quantum  meruit  for  the  part  of  the  work  performed1. 
Where  a  charter  or  a  statute  requires  that  a  contract  shall  be 
let  to  the  lowest  bidder,  it  does  not  prevent  a  municipality 
from  requiring  and  using  an  article  in  which  there  is  no  com- 

1.     Detroit    v.    Mich.    Paving      Co.,  36  Mich.  335,  338. 


§  360  THE  LAW  OF  TAXATION  508 

petition,  as  something  protected  by  a  patent.  The  benefit  to 
be  anticipated  from  the  public  letting  of  contracts  must  vary 
greatly  according  to  the  extent  of  competition  that  is  pos- 
sible or  can  be  excited.  The  nature  of  the  work  may  reduce 
competition  because  of  the  scarcity  of  materials,  or  because 
the  materials  are  owned  by  a  few,  or  because  the  work  is 
so  expensive  that  but  few  have  the  means  to  undertake  it. 
The  security  of  the  city  against  combinations  and"  extrava- 
gant contracts  in  such  cases  must  rest  in  the  power  which 
the  council  possesses,  to  reject  any  bids  which  they  deem  un- 
reasonable. The  legislature  considers  this  power  of  value 
else  it  would  have  otherwise  made  the  lowest  bid  conclusive, 
and  the  execution  of  a  contract  in  compliance  with  it  com- 
pulsory. The  statute  has  fixed  a  rule  by  which  much  benefit 
will  be  derived  in  many  cases  and  some  benefit  in  all  cases ; 
and  contracts  are  valid  which  comply  with  that  rule2.  Bids 
may  be  made  upon  a  patented  article  or  process  when,  in 
fact,  there  can  be  no  competition.  Bids  are  of  two  kinds, 
viz.,  to  construct  a  work  with  different  kinds  of  materials, 
and  to  construct  it  of  the  same  kind  of  materials.  The  first 
kind  of  bidding  has  in  fact  little  of  competition  since  it  can- 
not be  said  which  is  the  lowest  bid,  and  in  principle,  is  very 
similar  to  bidding  upon  patented  articles  where  there  is  no 
competition3.  When  the  contract  is  required  to  be  let  to  the 
lowest  bidder,  there  is  no  authority  to  provide  for  contin- 
gencies, such  as  rock  or  quick  sand,  and  to  provide  allow- 
ances therefor  upon  estimates  of  the  board  of  public  works 
The  contract  must  be  let  for  a  gross  sum,  and  will  be  void 
if  not  so  done.  Although  the  specifications  are  so  drawn, 
yet  the  contractor  will  be  presumed  to  know  the  power  of 

2.  Hobart      v.      Detroit,      17  cil,  120  Mich.  226,  236,  and  cases 
Mich.  246,  254;  Motz  v.  Detroit,  cited;  Attorney  General  v.  De- 
18   Mich.   495,  514.  troit,  26  Mich.  263. 

3.  Holmes   v.   Detroit   Coun- 


CONTRACT,  LI ARI LIT V,  ETC.  §360 

the  board  and  the  council,  and  to  know  the  law,  and  that 
such  a  contract  could  not  be  enforced4.  In  street  paving, 
the  council  may  advertise  for  bids  for  different  kinds  of 
paving.  They  need  not  specify  the  particular  kind  that  will 
ultimately  be  used5.  It  may  advertise  for  bids  with  the  privi- 
lege of  extending  the  work  at  the  price  of  the  accepted  bid. 
It  is  not  necessary  to  advertise  for  second  proposals  in  such 
a  case,  should  the  municipality  desire  to  extend  the  improve- 
ment after  the  first  section  is  completed".  The  council  has 
the  right,  after  bids  have  been  received,  to  reject  all  bids,  or 
to  refuse  to  go  on  with  the  proposed  work.  When  the  coun- 
cil is  required  to  approve  a  contract,  it  may  do  .so  after  the 
board  of  public  works  have  made  it7.  It  is  not  necessary 
that  the  bids  distinguish  between  the  portions  chargeable 
to  the  city,  and  the  portions  chargeable  to  the  lot  owners. 
The  apportionment  of  the  bid  is  a  mere  matter  of  arithmetic8. 
In  the  absence  of  a  statutory  provision,  a  contract  need  not 
be  let  to  the  lowest  bidder9.  Where  the  clerk  advertises  for 
bids  on  a  certain  date,  the  board  of  public  works  having 
directed  the  advertisement  but  not  the  date,  and  the  board 
of  public  works  receives  the  bids  on  that  date,  it  is  a  ratifica- 
tion of  the  act  of  the  clerk10.  When  the  bids  are  opened  in 
the  office  of  the  board,  in  the  presence  of  the  bidders,  it  is 
a  public  bid11.  Where  the  obligation  exists  to  let  a  bid  to 

4.  McBrian  v.  Grand  Rapids,  7.     Grant  v.  Detroit,  91  Mich. 
56    Mich.   95,    108.  274. 

5.  Attorney    General    v.    De-  8.     Beniteau     v.     Detroit,     41 
troit,    26    Mich.    263,    272;    there  Mich.   116,   118. 

were    two    bids    for    the    same  9.     Kundinger  v.  Saginaw,  132 

kind  of  navcment,  and  the  coun-  Mich.     395,     402;     Yarnold     v. 

cil    did    not    accept    the    lowest  Lawrence     City,     15     Ks.     126; 

bid  because  it  was  claimed  that  Chandler    v.    Board    of    Educa- 

the   lowest    bidder   had    no    right  tion.  104  Mich.  492. 

to   use   this    pavement,   but    the  10.     Duffy     v.     Saginaw,     100 

court     did     not     determine     the  Mich.   335. 

effect  in   this  proceeding.  11.     Cass    Farm    Co.    v.    De- 
ft   Brevoort      v.      Detroit,      24  troit,  124  Mich.  423. 
Mich.   322,  325. 


§  361  THE  LAW  OF  TAXATION  510 

the  lowest  bidder,  the  council  cannot  permit  the  lowest  bid- 
der to  withdraw  his  bid  and  award  the  contract  to  the  next 
lowest  bidder  without  a  readvertisement  of  the  letting  of 
the  contract12.  Where  a  charter  requires  a  work  to  be  let 
to  the  lowest  bidder,  but  permits  the  council  to  change  the 
plans,  it  does  not  confer  any  right  to  change  plans  after  a 
contract  has  been  let,  and  make  a  new  contract  at  an  in- 
creased cost,  without  readvertising  for  bids.  The  increased 
tax  will  be  without  jurisdiction  and  void13.  Neither  can 
the  municipality  abat  a  portion  of  the  proposed  work,  and 
tising  for  bids14. 

§361.     Irregularities  in  Accepting  Bids. 

Although  the  council  does  not  award  the  contract  to  the 
lowest  bidder,  this  action  will  not  afford  grounds  for  recov- 
ing  damages  against  the  city.  Such  a  provision  is  not  for 
the  benefit  of  the  bidder,  but  for  the  protection  of  the  public. 
Whenever  an  action  is  brought  for  a  breach  of  duty  imposed 
by  statute,  the  party  bringing  it  must  show  that  he  had  an 
interest  in  the  performance  of  the  duty,  and  that  the  duty 
was  imposed  for  his  benefit.  But  where  the  duty  was  cre- 
ated or  imposed  for  the  benefit  of  another,  and  the  advan- 
tage to  be  derived  by  the  party  prosecuting,  by  its  per- 
formance, is  merely  incidental,  and  no  part  of  the  design 
of  the  statute,  no  such  right  is  created  as  forms  the  subject 
of  an  action.  The  remedy  in  such  a  case  is  by  injunction 
before  the  contract  is  executed15.  In  the  absence  of  a  statu- 

12.  Twiss  v.  Port  Huron,  63      work   to   be   done   under   illegal 
Mich.   528,    532.  contract      will      thereafter      be 

13.  Auditor         General         v.      estopped. 

Stoddard,  147  Mich.  329.  15.     Talbot      Paving      Co.     v. 

14.  W.     F.     Stewart    Co.    y.  Detroit,     109     Mich.     657,     660; 
Flint,    147    Mich.    697;    but    this  Strong    v.    Campbell,    11    Barb, 
•case  also  holds  that  a  tax  payer,  138. 

who  stood  bv  and  permitted  the 


511  CONTRACT,  LIABILITY,  ETC.  §  362 

tory  provision  requiring  a  contract  to  be  let  to  the  lowest 
bidder,  an  injunction  will  not  lie,  in  the  absence  of  fraud, 
to  restrain  a  public  body  from  accepting  a  higher  bid16. 
When  there  is  such  a  provision,  and  proposals  are  made  and 
bids  are  put  in  in  the  usual  manner  of  letting  contracts  for 
public  works,  the  lowest  bidder  has  no  such  fixed,  absolute 
right  that  he  is  entitled  to  a  mandamus  to  compel  the  letting 
of  a  contract  to  him  after  his  bid  has  in  fact  been  rejected 
and  the  contract  awarded  to  another.  The  statutory  pro- 
vision in  such  cases  is  designed  for  the  benefit  and  protec- 
tion of  the  public,  not  the  bidders.  Even  when  the  lowest 
bid  has  been  accepted,  and  the  officers  refuse  to  enter  into 
the  contract,  mandamus  will  not  lie  to  compel  the  execution 
of  the  contract.  Since  the  council  has  a  right  to  reject  all 
bids,  it  will  not  be  compelled  to  accept  any17.  Where  a  bid- 
der has  deposited  a  certified  check  with  his  bid,  it  would 
seem  that  he  could  withdraw  the  check  when  there  was 
material  misrepresentations  as  to  the  work  to  be  done18. 
It  is  competent,  however,  for  a  tax  payer  to  assail  a  con- 
tract for  fraud  in  accepting  bids,  and  show  the  increased 
cost  of  the  work  on  account  thereof19. 

$362.     The  Contract. 

In  general,  bidders  must  be  given  an  opportunity  to  make 
a  definite  bid ;  and  the  specifications  in  the  notice  may  be  all 
of  the  specifications  of  the  contract.  When  the  contract  is 
executed,  such  a  notice  has  all  of  the  force  and  effect  of  an 
ordinance.  A  contractor  cannot  recover  damages  from  the 

16.     Chandler     v.     Board     of  Campbell,  72   N.  Y.  496. 

Education,    104    Mich.    292,    fol-  17.     Langley    v.    Harmon,    97 

lowing  State  v.   Board  of  Edu-  Mich.   347. 

cation,     24     Wis.     683;     Talbot  18.     Whitney  v.   Hudson  Vil- 

Paving  Co.   v.    Detroit*  Council,  age,  69  Mich.  189,  204. 

91     Mich.    262,    where    a    man-  19.     Whitney  v.   Hudson  Vil- 

damus    was    refused;    People    v.  lage,  69   Mich.   189.   204. 


§  363  THE  LAW  OF  TAXATION  512 

municipality  occasioned  by  a  delay  where  the  city  is  tem- 
porarily restrained  from  proceeding  with  the  work20.  The 
owner  of  a  patent  pavement,  where  the  regular  steps  have 
been  taken  to  make  a  contract,  may  contract  with  the  city 
for  the  use  of  that  pavement21.  The  fact  that  the  work  and 
materials  were  not  such  as  were  called  for  by  the  contract 
will  not  avoid  the  assessment.  The  courts  will  not  interfere 
with  the  discretion  of  the  authorized  agents  of  the  munici- 
pality in  the  exercise  of  the  power  granted  by  the  legisla- 
ture except  where  there  is  a  want  of  jurisdiction  in  the  pro- 
ceedings22. A  school  board  have  no  authority  to  require  a 
contractor  to  employ  union  labor  exclusively,  upon  a  public 
building23.  Unless  there  is  legislative  power  so  to  do,  the 
council  cannot  by  ordinance,  limit  the  hours  of  labor  of 
workmen  employed  by  city  contractors,  to  eight  hours  a 
day24.  „ 

§363.     The  Contract.    Extras. 

When  the  charter  requires  a  contract  to  be  let  as  approved 
by  the  council,  the  board  of  public  works,  after  the  execu- 
tion of  the  contract,  have  no  power  to  allow  the  contractor 
for  extras.  Although  the  contract  may  provide  for  altera- 
tions at  the  direction  of  the  board,  yet  this  is  not  authority 
for  making  any  material  alterations,  as  changing  the  line  of 
a  sewer.  The  contractor  is  bound  to  know  that  the  board 
could  not  make  a  new  contract  with  him,  or  make  any  sub- 


.20.     Mathewson       v.       Grand  cation,  139  Mich.  307. 

Rapids,  88  Mich.  558.  24.    Attorney    General    v.    De- 

21.  Detroit    v.    Robinson,    42  troit,    153     Mich.    525,    holding 
Mich.  198;  see  §33,  supra.  that    this   violates   provision    of 

22.  Dixon      v.      Detroit,      86  the    charter   requiring   contracts 
Mich.   516;   Motz  v.   Detroit,   18  for    more    than    $200.00    to    be 
Mich.    515;    Cass    Farm    Co.    v.  let    to    the    lowest    responsible 
Detroit,  124  Mich.  423.  bidder. 

23.  Lewis  v.   Board  of   Edu- 


513  CONTRACT,  LIABILITY,  ETC. 

stantial  deviation  from  the  one  executed.  Any  other  rule 
would  open  the  door  to  an  evasion  of  the  statute25.  Although 
the  board  of  public  works  have  charge  of  the  work,  and  a 
provisions  of  the  contract  may  allow  them  to  make  altera- 
tions, the  same  to  be  paid  for  at  a  fair  valuation,  yet  such 
a  provision  does  not  authorize  any  change  that  will  make 
the  total  cost  of  the  work  more  than  the  contract  price.  The 
board  of  public  works  cannot  bind  the  city  to  an  increase 
of  the  contract  price26.  Persons  dealing  with  a  municipal 
corporation  through  its  officers,  must,  at  their  peril,  take 
notice  of  the  authority  of  the  particular  officer  to  bind  the 
corporation.  If  his  act  is  beyond  the  limit  of  his  authority, 
the  municipality  is  not  bound.  Thus,  where  a  contract  re- 
served the  right  to  lay  water  pipe  in  the  street  and  the  lay- 
ing of  such  pipe  entailed  a  longer  haul  upon  the  contractor, 
he  cannot  recover  therefor  though  promised  extra  pay  by  the 
engineer27.  When  a  contractor  assumes  all  risks  of  un- 
known obstructions,  he  cannot  recover  from  the  city  because 
he  encountered  quicksand,  which  caused  much  work;  the 
fact  that  his  contract  permitted  extra  pay  for  work  ordered 
done  by  the  city  is  immaterial  when  the  city  did  not  assume 
to  dictate  the  method  of  construction28.  Neither  will  the  city 
be  liable  for  extra  work  because  the  water  board  laid  pipe 
before  the  paving  was  begun,  which  caused  the  pavement  to 
settle  and  entailed  extra  work,  the  water  board  being  inde- 
pendent of  the  council.  Neither  will  the  board  itself  be  liable, 
because  the  only  duty  it  owed  was  one  to  the  public.  It  did 
not  owe  any  duty  to  the  contractor20.  The  municipality  will 
not  be  liable  to  a  contractor  for  a  temporary  delay  in  the 

25.  Camoau    v.    Detroit,    108      Mich.  237. 

Mich.  414,  419.  28.     Gartner    v.    Detroit,    131 

26.  Chittenden     v.     Lansing,      Mich.  21. 

120    Mich.   539.  29.     Grant  v.  Board  of  Water 

27.  Rens  v.  Grand  Rapids,  73      Com'rs,  122  Mich.  694. 

(S3) 


§  364  THE  LAW  OF  TAXATION  514 

work  caused  by  the  issuing  of  an  injunction  against  the  city, 
when  the  city  has  acted  in  good  faith.  Neither  would  it  be 
liable  if  the  contractor  ceased  work  at  the  request  of  the 
board  of  public  works.  If  the  work  was  permanently 
stopped,  the  contractor  could  recover  for  the  value  of  the 
work  done.  It  is  the  duty  of  a  contractor  to  know  whether 
the  city  has  the  right  to  proceed  with  a  work  or  not30.  Where 
the  council  itself  orders  extra  work,  even  though  there 
should  have  been  a  readvertisement  to  charge  the  special 
assessment  district,  the  municipality  itself  will  be  liable31. 

§364.     Authority  of  Engineer. 

The  authority  of  an  engineer  to  modify  a  contract  cannot 
be  inferred  from  authority  to  direct  its  performance.  Un- 
der a  stipulation  that  the  engineer's  interpretation  of  a  con- 
tract shall  be  final,  his  determination,  in  the  absence  of  fraud, 
will  be  binding  upon  both  parties  insofar  as  does  not  attempt 
to  modify  the  contract.  Thus,  where  a  contract  provided 
that  water  pipe  should  not  be  laid  in  water,  and  the  engineer 
directed  that  they  should  be,  his  decision  was  held  binding 
upon  the  city  although  a  defect  resulted  therefrom.  Under 
such  a  provision,  the  contractors  are  bound  to  obey  the  or- 
ders of  the  supervising  engineer,  when  made  in  good  faith, 
whether  those  orders  are  to  their  advantage  or  detrimental 
to  their  interest;  nor  are  they  exempt  from  obedience  be- 
cause they  believe  those  orders  to  be  unwise.  A  munici- 
pality cannot  avail  itself  of  the  advantage  of  having  a  super- 
vising architect,  with  power  to  decide  upon  every  detail  as  it 
may  arise,  without  taking  the  consequences  of  an  erroneous 
decision.  His  decision  will  not  be  reviewed  if  honestly  made ; 
it  is  not  binding  if  it  does  not  accord  with  his  honest  judg- 

30.     Mathewson       v.       Grand          31.     Pierson  v.  Ionia,  15  L.  N. 
Rapids,   88   Mich.   558.  189,  Mich. 


515  CONTRACT,  LIABILITY,  ETC.  §  365 

ment.  The  burden  of  proving  dishonesty  is  upon  the  part) 
attacking  the  decision82.  Where  a  contractor,  in  pursuance 
let  a  new  contract,  even  at  a  reduced  rate,  without  readver- 
of  the  provisions  of  his  contract,  and  under  the  directions 
of  a  supervising  engineer,  performs  his  work,  and  it  proves 
defective,  th  econtractor  is  not  chargeable  with  the  bad  re- 
sult. If  there  is  a  dispute  as  to  whether  or  not  a  contract 
was  performed,  that  dispute  is  to  be  settled  by  a  jury.  The 
board  of  public  works  cannot  arbitrarily  decide  that  it  was 
not  performed38. 

§365.     Non-Performance  of  Contract. 

The  fact  that  an  improvement  is  not  made  according  to 
the  contract  will  not  afford  an  excuse  for  setting  aside  the 
tax.  The  court  does  not  interfere  with  the  discretion  of 
the  authorized  agents  of  the  municipality  except  for  juris- 
dictional  defects.  The  fact  that  the  work  or  materials  were 
not  such  as  were  called  for  by  the  contract  is  only  an  irregu- 
larity ;  it  is  no  defense  to  enforcing  the  contract  or  the  assess- 
ment34. A  contractor  cannot  recover  damages  from  the  city 
for  a  temporary  delay  caused  by  an  injunction  issued  against 
the  city,  where  the  municipality  had  acted  in  good  faith.  If. 
however,  the  work  was  permanently  stopped,  he  could  re- 

32.  See  "Extras,"  §363,  supra.  not  performed  according  to  its 
Lampson  v.  Marshall,  133  Mich.  terms.     The   proper   authorities 
2ol,  259,  following  Chicago,  etc.,  must    decide    upon    this,    and    if 
R.  Co.  v.  Price,  138  U.  S.  185.  they     accept     the     work,     the 

33.  Schliess  v.  Grand  Rapids,  acceptance,    in    the    absence    of 
131  Mich.  52,  60.  fraud,   is  conclusive.     The  pre- 
34.     Motz      v.    ,  Detroit,      18  text    that    the    tax    payer    shall 

Mich.  515;  Dixon  v.  Detroit,  86  avoid    payment    of    his    assess- 

Mich.  516,  520;  Harper  v.  Grand  ment  because  the  funds  are  in- 

Rapids.     105     Mich.     551,     553;  judiciously  applied,  is  the  worst 

Cass   Farm   Co.   v.   Detroit,  124  form  of  repudiation."     Haley  v. 

Mich.  426;  the  principle  has  also  Alton,     152     111.     113,     quoting 

been    thus    stated:      "It    is    no.  from    State    v.    Jersy    City,    29 

defense   to   an   assessment   that  N.  J.  441. 
the  contract  for  the   work   was 


§§  366,  367  THE  LAW  OF  TAXATION  516 

cover  the  value,  at  least,  of  what  had  been  done35.  There  is 
no  implied  contract  between  the  contractor  and  the  city  in 
these  matters,  where  the  contract  is  required  to  be  let  to  the 
lowest  bidder.  Work  partially  done  under  a  broken  contract, 
which  cannot  be  enforced  as  a  written  contract,  stands  as  if 
there  was  no  contract.  Unless  the  contract  itself  provides 
some  help  in  such  an  emergency,  there  is  no  remedy.  Action 
cannot  be  brought  upon  the  quantum  meruit.  If  the  rule 
were  otherwise,  the  contractor  would  be  recovering  for 
work  at  a  price  not  fixed  by  competitive  bidding,  since  the 
competitive  bids  were  upon  the  whole  work  and  not  upon 
a  part  of  the  work36. 

§366.     Stipulated  Damages. 

A  provision  charging  a  contractor  ten  dollars  per  day  as 
stipulated  damages  for  the  non-performance  of  his  work 
after  the  time  stipulated,  is  a  valid  provision  and  not  neces- 
sarily a  penalty ;  since,  in  addition  to  the  cost  of  extra  super- 
intendence, the  city  loses  the  use  of  the  work  itself.  Paying 
estimates  as  they  are  made,  is  not  a  waiver  of  this  pro- 
vision37. 

§367.     Materials  in  Street. 

When  a  street  is  repaved,  the  old  material  may  be  used 
by  the  city  on  other  streets38.  In  grading  a  street,  the  city 
has  an  undoubted  right  to  remove  the  soil  to  other  streets 
for  filling  purposes39. 

35.  Mathewson       v.       Grand  the  rule  if  the  owner  had  paid 
Rapids,  88  Mich.  558.  for   this    material    originally,    or 

36.  Detroit,  v.   Mich.   Paving  whether,  if  it  was  of  any  value, 
Co.,  36  Mich.  335,  339.  it    should    be    credited    to    the 

37.  Lampson      v.      Marshall,  district. 

133   Mich.  251,  264.  39.     Griswold  v.  Bay  City,  35 

38.  Shimmons     v.      Saginaw,  .Mich.   452;    the    court    does   not 
104    Mich.    512;    the   court   does  decide  whether  or  not  the  city 
not    determine    what    would   be  could  sell  it. 


CONTRACT,  LIABILITY,  ETC. 

£368.     Primary  Liability  for  the  Work. 

In  general,  unless  restricted  by  statutory  provisions,  the 
municipality  is  prifnarily  liable  for  this  class  of  improve- 
ments. Even  though  the  contract  itself  may  provide  for  pay- 
ment of  the  work  out  of  the  special  fund  to  be  raised  by 
assessment  upon  the  abutting  property  owners,  and  the  city 
is  without  authority  to  enforce  this  assessment,  the  city  will 
be  liable.  It  has  had  the  benefit  of  the  performance  of  the 
work,  and  ratified  it40.  It  would  seem,  however,  that  under 
such  a  provision,  the  contractor  must  wait  until  the  assess- 
ment has  finally  failed ;  the  fact  that  the  proceedings  are  tied 
up  by  injunction  and  no  steps  were  taken  to  establish  the 
validity  of  the  assessment  that  an  action  by  the  contractor 
would  not  lie41.  If  the  contract  for  paving  is  valid,  but  the 
assessment  invalid  the  municipality  is  bound  by  the  terms  of 
its  contract  as  first  made.  Although  the  power  to  reassess 
may  be  granted  by  a  special  act  of  the  legislature,  such  act 
cannot  cut  down  the  amount  of  the  original  contract42.  In 
case  of  an  excess  in  a  special  assessment,  and  the  charter 
provides  that  such  excess  shall  be  paid  back  pro  rata  to  the 
tax  payers,  the  persons  entitled  thereto  may  bring  assumpsit 
and  recover  their  share.  In  such  a  case,  where  there  are 
several  assessing  districts  having  an  excess,  the  city  cannot 
set-off  the  excess  in  one  district  against  what  may  be  due 
in  another,  as  each  district  must  stand  upon  jts  own  foot- 
ing48. The  city  will  be  liable  for  a  defective  plan  which  will 
of  necessity  cause  injury,  as  where  a  sewer  must  damage  a 

40.     See  "Extras,"  §363,  supra;  41.     Affeld     v.     Detroit,     112 

"Bonds,"    8360,    post.      Corliss    v.  Mich.   560. 

Highland     Park,    132    Mich.    152,  42.     Whitely    v.     Lansing,    27 

161 ;  Adams  v.  Bay  City,  78  Mich.  Mich.  131. 

211,    214;     Commercial    National  43.    Thayer    v.    Grand    Rapids, 

Bank    v.    Portland,    24    Qr.    188;  82  Mich.  298. 
Chicago  v.  People,  56  111.  327. 


§  368  THE  LAW  OF  TAXATION  518 

land  owner44.  It  will  be  liable  where  it  changes  the  grade 
of  a  street,  and  thereby  dams  water  back  upon  private  prem- 
ises46. The  city  will  not  be  liable  for  a  royalty  upon  a 
patented  pavement  which  it  had  agreed  to  pay,  if  the  patent 
is  declared  void46.  If  the  contractor  is  unable  to  complete 
his  work,  through  no  fault  of  the  municipality,  he  cannot 
recover  for  the  work  he  has  done ;  an  action  will  not  lie  upon 
the  quantum  meruit47.  If,  however,  the  work  is  perma- 
nently stopped  by  the  city,  the  contractor  can  recover  the 
value  of  the  work  he  has  performed48.  Where  a  charter 
provision  requires  that  the  cost  of  a  special  improvement 
shall  be  paid  out  of  the  special  asessment  fund,  the  corpora- 
tion has  no  power  to  make  itself  responsible  for  any  special 
work.  The  work  can  only  be  paid  for  by  the  funds  actually 
in  the  treasury  provided  for  this  specific  purpose.  The 
municipality  is  only  bound  to  use  reasonable  care  and  dis- 
patch in  the  collection  and  payment  of  such  fund.  The  con- 
tractor must  recognize  the  ordinary  methods  provided  by 
law  for  raising  the  money,  and  look  to  that  only.  The  city 
at  large  will  not  be  liable49.  Even  though  there  should  be 
a  delay  in  the  collection  of  this  tax,  an  order  on  the  general 
fund  of  the  municipality  for  such  work  cannot  be  enforced60. 
Where  the  council  neglect  to  take  from  a  contract  the  bond 
required  by  C.  L.  §10,743,  the  members  of  the  council  indi- 
vidually become  liable  to  material  men  for  any  loss  sustained 
by  them  on  account  thereof.  This  action  is  based  upon  tort, 
not  contract.  It  is  incumbent  upon  the  plaintiff  to  show  that 
he  is  unable  to  collect  his  debt  from  the  contractor,  thereby 

44.  Defer      v.      Detroit,      67      Co.,  36  Mich.  335,  339. 

M;ch.    346.  48.     Mathewson       v.       Grand 

45.  Rice    v.    Flint,    67    Mich.      Rapids,  88  Mich.   558. 

401.  49.     Goodrich   v.    Detroit,   123 

46.  Detroit    v.    Robinson,    42      Mich.  279,  287. 

Mich.   198,  and  38   Mich.   108.  50.     Second  National  Bank  v. 

47.  Detroit    v.     Mich.     Paving      Lansing,   25    Mich.    207. 


519  CONTRACT,  LIABILITY,  ETC.  §369 

having  suffered  an  injury  as  the  direct  result  of  the  negli- 
gence of  the  council51.  The  bondsmen  are  liable  to  the 
material  men.  The  difference  between  a  sub-contractor  and 
a  material  man  is,  that  the  subcontractor  furnishes  material 
under  the  original  contract,  while  a  material  man  furnishes 
them  according  to  certain  measures,  without  reference  to  the 
contract52.  Where  the  sureties  deliver  a  bond  not  signed  by 
the  principal,  the  sureties  are  liable  thereon53.  The  statute 
does  not  require  a  bond  where  the  municipality  itself  under- 
takes the  work;  but  where  a  contractor  furnishes  materials 
to  a  city  gives  such  a  bond,  it  will  be  available  to  a  sub- 
contractor54. A  manufacturer  furnishing  lockers  to  the  con- 
tractor of  a  public  building  will  be  deemed  a  material  man 
where  the  original  contract  for  the  construction  of  the  build- 
ing is  not  the  standard  of  the  work  or  materials  furnished55. 

§369.     Bonds. 

Purchasers  of  public  bonds  are  bound  to  know  the  extent 
and  limitations  upon  the  authority  of  corporations  to  issue 
bonds.  They  are  bound,  in  other  words,  to  know  the  law 
under  which  the  authority  is  exercised.  They  have  a  right, 
however,  to  rely  upon  all  of  the  facts  asserted  or  appearing 
upon  the  face  of  the  bonds  made  by  any  person  or  body 
authorized  by  law  to  pass  upon  and  determine  the  facts. 

51.  Smith     v.     Hubble,     142  54.     People  v.  Newberry,  152 
Mich.   637.  Mich.   292. 

52.  Michaels   v.    McRoy,   148  55.     People     v.     Title     Guar- 
Mich.  577 ;  Davis  v.  Campfield,  150  antee    &    Trust    Co.,    15    L.    N. 
Mich.   675.  904,            Mich.             Where  the 

53.  J.     E.     Bartlett     Co.     v.  specifications  for  the  lockers  in 
Carrol,  151  Mich.  233.     In  John-  the    original    contract    were    in- 
son  v.   Kimball  Twp.,  39  Mich,  definite     and     incomplete.        See 
187,    the    sureties   were   held    not  People  v.  Campfield,  150   Mich, 
liable     when     the     bond,     not  675;    People    v.    Banhagel.    151 
signed    by    the    principal,    was  Mich.  40. 

delivered    without   authority. 


§  369  THE  LAW  OF  TAXATION  520 

When  the  officer  whose  duty  it  is  to  make  the  record,  cer- 
tifies that  there  is  such  a  record,  his  neglect  to  have  entered 
such  acts  in  his  records  will  not  defeat  a  bona  fide  purchaser 
of  the  bonds.  Thus,  when  school  bonds  recite  that  the  school 
board  directed  their  issuance,  the  fact  that  the  record  of  the 
board  does  not  show  such  authority,  will  not  invalidate  them 
in  the  hands  of  an  innocent  purchaser56.  Although  the  bonds 
may  have  been  issued  for  an  illegal  purpose,  purporting  to 
be  for  a  park  but  in  fact  were  intended  as  a  bonus,  yet  a 
bona  fide  purchaser,  relying  upon  the  recitals  in  the  bonds, 
will  be  protected57.  Bonds  may  be  issued  before  the  pro- 
posed work  is  declared  necessary;  and  it  will  be  no  objection 
to  such  issue  that  the  right  of  way  for  the  work  has  not  been 
procured58.  Where  there  is  a  total  want  of  power,  under 
the  law,  in  the  officers  or  board  who  issue  the  bonds,  then 
the  bonds  will  be  void  in  the  hands  of  innocent  holders,  the 
distinction  being  between  questions  of  fact  and  questions 
of  law.  If  it  is  a  question  of  fact  and  the  board  or  officers 
are  authorized  by  law  to  determine  the  fact,  then  their  de- 
termination is  final  and  conclusive.  And  although  it  may 
be  contrary  to  the  fact,  yet,  if  recited  in  the  bond  that  the 
necessary  and  proper  steps  required  by  law  to  be  taken,  had 
been  taken,  then  the  municipality  is  estopped  from  denying 
that  they  had  been  taken59.  Where  bonds  recite  that  they  are 
for  "loans  lawfully  made,"  such  a  recital  infers  that  the  loan 
must  have  been  made  by  the  vote  of  the  electors.  If  then 
the  bonds  do  not  also  recite  that  such  a  vote  was  had,  the 


56.  Gibbs  v.  School  Dist.,  88  Village     v.     Schmid,     151     Mich. 
Mich.  334,  337.  85.    same    v.     same,    15    L.    N. 

57.  Thompson      v.      Mecosta  1008. 

Village,  127  Mich.  522;  Schmidt  58.     Naegly    v.    Saginaw,    101 

v.     Frankfort,     131     Mich.     197,  Mich.  532. 

200;  Thompson  v.  Mecosta  Vil-  59.     Spitzer  v.  Blanchard  Vil- 
lage, 141  Mich.  176;  this  will  be  lage,  82  Mich.  234. 
a    question    of    fact;    Frankfort 


521  CONTRACT,  LIABILITY,  ETC.  §  370 

purchaser  will  not  be  protected,  if  in  fact  such  a  vote  was 
required60.  The  reorganization  of  a  school  district  contain- 
ing substantially  the  same  territory  as  the  old  one,  does  not 
affect  bonds  issued  prior  to  such  reorganization81.  The 
sureties  on  a  bond  given  by  a  public  contractor  to  secure 
laborers  and  materialmen  will  not  be  released  because  the 
municipality  pays  the  contractor  faster  than  he  has  earned 
payment.  Subcontractors,  however,  will  not  be  deemed 
laborers  or  materialmen,  and  cannot  recover  upon  such 
bond62.  Neither  can  the  sureties  avoid  liability  by  showing 
that  the  municipality  did  not  approve  the  bond  of  the  prin- 
cipal68. (See  Form,  Appendix  A. ) 

§370.     The  Record. 

The  record,  under  the  various  charters,  must  show  the 
aye  and  nay  vote  of  each  member  of  the  council  in  ordering 
an  assessment.  It  will  not  be  sufficient  to  state  that  the  vote 
was  unanimous84.  The  principle  upon  which  the  assessment 
was  made  must  appear  of  record ;  it  cannot  be  left  to  infer- 
ence65. A  prior  petition  for  an  improvement  cannot  be 
used  to  supply  the  defects  of  a  subsequent  petition66.  It  is 
not  necessary  that  the  roll  show  the  width  of  street  intersec- 
tions, when  the  details  appear  in  the  record67.  The  record 
of  plans  of  the  board  of  public  works  for  improvement  of 
the  streets,  cannot  rest  in  parol68.  Parol  evidence  is  not 

60.  Portsmouth    Savings    Bk.  65.     Adams    v.    Bay    City,    78 
v.  Ashley  Village,  91  Mich.  670.  Mich.     211,     214;      Warren     v. 

61.  Wayne    Co.    Savings    Bk.  Grand   Haven.  30   Mich.  24,  20; 
v.    School    Dist.,   15    L.    N.   252,  White  v.  Saemaw,  67  Mich.  40, 

Mich.            .  41. 

62.  Reynolds     v.     Banhagle,  66.  Auditor  General  v.  Fish- 
151   Mich.  40.  er,  84  Mich.   128. 

63.  J.     E.     Bartlett     Co.     v.  67.  Walker    v.    Detroit,    136 
Carroll,  151  Mich.  233.  Mich.  6. 

64.  Steckert  v.  East  Saginaw,  68.  Lamed     v.     Briscoe,     62 
22    Mich.    104,    106.  Mich.  393. 


§§  371,  372  THE  LAW  OF  TAXATION  522 

admissible  to  contradict  the  record  of  the  proceedings  of  the 
common  council ;  but  it  is  admissible  to  show  that  a  part  of 
the  record  was  omitted69. 

§371.     Presumptions. 

No  presumption  arises  that  the  work  is  necessary  because 
the  improvement  was  ordered  or  the  contract  therefor  let70. 
The  presumption  is  that  the  cost  of  street  intersections  is 
paid  by  the  city  where  it  is  so  ordered  by  statute71.  Public 
property  owned  by  one  of  the  political  subdivisions  of  the 
state  is  presumed  to  be  exempt  from  all  kinds  of  taxes;  but 
all  other  kinds  of  property  are  presumed  to  be  taxed,  and 
only  are  exempt  when  expressly  made  so  by  statute72.  When 
the  council  orders  a  certain  sum  spread  upon  lots  benefited, 
it  will  be  presumed  that  the  lots  were  benefitted  to  that  ex- 
tent73. The  action  of  the  assessing  board  will  be  presumed 
to  be  correct,  and  will  not  be  reviewed  except  for  fraud74. 

§372.     Qualifications  of  Officers. 

An  alderman  interested  within  the  assessment  district  is 
not  disqualified  to  vote  upon  determining  the  assessment 
district,  though  he  would  be  to  vote  upon  the  assessment75. 
A  juror  in  a  street  opening  case,  who  had  served  upon  a 
former  panel  on  the  piece  in  question,  the  first  jury  having 
disagreed,  is  disqualified  to  sit  on  the  second  jury76. 

69.  Wheat  v.   Van  Tine,  149          74.     See    "Collateral    attack," 
Mich.  314.  §455,   post;    Shimmons   v.   Sagi- 

70.  Hoyt  v.  East  Saginaw,  19  naw,   104    Mich.   512;    Davies   v. 
Mich.  39,  44;  White  v.  Saginaw,  Saginaw    87  Mich.  439;   Powers 
67  Mich.  33,  41.  v.  Detroit,  139  Mich.  30;  Walker 

71.  Beniteau    v.    Detroit,    41  v.  Detroit,  138  Mich.  538. 
Mich.   116.  75.     Steckert     v.     East     Sagi- 

72.  Big     Rapids     v.      Super-  naw,  22  Mich.  104,  112. 
visors,  99  Mich.  351.  76.     Hester    v.    Chambers,    84 

73.  Goodrich   v.   Detroit,   123  Mich.   562. 
Mich.  159. 


523  CONTRACT,  LIABILITY,  ETC.  §§  373,  374 

;|373.     Delegated  Authority. 

The  legislature  may  delegate  to  the  council  the  power  to 
determine  whether  a  proposed  improvement  is  a  public  neces- 
sity or  not77 ;  or  the  mode  of  giving  notice  or  of  making  the 
assessment78.  It  cannot  delegate  to  local  officers  previously 
appointed,  the  power  to  purchase  lands  or  issue  bonds79. 
The  council  cannot  delegate  their  power  to  determine  the 
assessing  district  to  commissioners80.  Neither  can  it  dele- 
gate its  power  to  determine  the  amount  to  be  paid  by  the 
city81.  It  may  delegate  the  power  to  make  the  assessments 
to  other  officers,  or  a  board,  since  this  is  administrative 
work82. 


§374.     Ratified  Acts. 

The  council  may  adopt  the  report  of  the  board  of  public 
works  as  to  the  cost  of  the  work83.  It  may  determine  the 
district  by  adopting  the  plat  thereof  made  by  the  engineer84. 
If  may  adopt  the  assessment  made  by  him85.  On  the  review 
of  the  roll,  it  may  adopt  the  report  of  a  committee86.  The 
board  of  public  works  may  adopt  the  date  of  opening  bids  as 
fixed  by  its  clerk87 ;  or  it  may  adopt  the  report  of  the  sur- 

77.  Voigt     v.      Detroit,     123  82.     Warren  v.  Grand  Haven, 
Mich.  547.  30  Mich.  24. 

78.  Williams     v.     Detroit,     2  83.     Cass    Farm    Co.    v.    De- 
Mich.  560,  580;  Auditor  General  troit,  124  Mich.  426. 

v.  Hoffman,  132  Mich.  198.  84.     Auditor    General    v.    Cal- 

79.  Board  of  Park  Com'rs,  v.  kins,  136  Mich.  1,  5;  Walker  v. 
Detroit    Council,   28    Mich.   228;  Detroit,    136    Mich.    6;    Davies 
Cass    Farm   Co.   v.   Detroit,  124  v.      Saginaw,      87      Mich.      439; 
Mich.  426.  Boehme    v.    Monroe    City,    106 

80.  Scofield    v.    Lansing,    17  Mich.  401. 

Mich.  437,  447.  85.     Auditor  General  v.  Hoff- 

81.  Scofield    v.    Lansing,    17      man,  132   Mich.  198. 

Mich.     437,     447;     Thomas     v.  86.  Brown    v.    Saginaw,    107 

Gain,    35    Mich.    155;    Voigt    v.  Mich.  643. 

Detroit,    123    Mich.    547;    Good-  87.  Duffy     v.     Saginaw,     106 

rich  v.  Detroit,  123  Mich.  559.  Mich.  335. 


§§  375,  376  THE  LAW  OF  TAXATION  524 

veyor88.  Ratification  of  acts  done  may  be  shown  from  the 
fact  that  the  council  paid  the  bills  incurred89.  The  act  of  a 
committee  awarding  contracts,  when  ratified  by  a  board,  will 
be  deemed  the  act  of  the  board90. 

§375.     Healing  Acts. 

The  statute  does  not  heal  lack  of  giving  the  statutory 
notice  as  to  the  determination  of  the  proposed  improvement. 
Lack  of  such  notice  may  be  raised  on  the  hearing  of  the  audi- 
tor general's  petition91.  An  omission  to  file  proof  of  pub- 
lication of  a  notice  of  review  of  the  assessment,  when  such 
notice  was  in  fact  given,  will  not  invalidate  the  roll92.  A 
tax  roll  unsigned  by  the  assessors,  cannot  be  cured  by  being 
confirmed  by  the  council93.  If  jurisdiction  is  acquired  by 
the  council,  no  individual  can  complain  of  an  error  that  does 
not  injuriously  affect  him.  He  will  not  be  injured  by  an 
omission  of  the  dollar  mark  from  the  roll94.  An  omission 
to  show  the  principle  of  the  assessment  is  not  cured  by  a 
charter  provision  making  the  roll,  after  endorsement,  prima 
facie  evidence  of  the  regularity  of  the  tax95. 

§376.     Estoppel. 

A  petitioner  for  a  public  improvement  is  presumed  to 
pray  for  legal  proceedings  in  accordance  with  the  existing 
laws;  and  where  the  council  depart  from  those  laws,  he 
will  not  be  estopped  from  contesting  the  tax.  Neither  will 
a  petitioner  be  estopped  from  contesting  a  tax  because  of 

88.  Cummings       v.        Grand  92.     Shimmons     v.     Saginaw, 
Rapids,  46  Mich.  150,  158.  104  Mich.  512,  520. 

89.  Wheat  v.  Tine,  149  Mich.  93.     Thompson  v.  Detroit,  114 
314.  Mich.   502. 

90.  Raymond     v.     McKenna,  94.     Williams     v.     Detroit,     2 
147  Mich.  35.  Mich.  560,  579. 

91.  Auditor    General    v.    Cal-  95.     Adams    v.    Bay    City,    78 
kins,  136  Mich.  1.  Mich.   211,   214. 


.*»:.':>  CONTRCCT,  LJABIUTY,  ETC.  §  376 

irregularities,  if  he  takes  seasonable  action  after  the  dis- 
covery of  the  defect,  although  the  improvement  may  have 
been  completed.  A  citizen  has  a  right  to  assume  that  the  law 
is  being  obeyed  rather  than  violated,  by  the  public  authori- 
ties; and  in  the  absence  of  any  previous  knowledge  on  his 
part  of  their  unlawful  action,  he  is  in  time  with  his  protest 
when  they  attempt  to  deprive  him  of  his  rights  or  property 
under  such  proceedings.  A  petitioner  for  a  special  improve- 
ment will  be  estopped  from  denying  that  the  council  had 
power  to  grant  his  petition,  but  he  will  not  be  estopped  from 
objecting  because  the  proceeding  has  not  been  carried  on 
according  to  law98.  An  alderman  who  has  taken  no  part  in 
levying  a  special  assessment  except  to  vote  for  a  day  of 
hearing  for  review,  is  not  estopped97.  A  land  owner  may 
raise  for  the  first  time  when  the  auditor  general  files  his 
petition,  objections  that  the  statutory  notice  of  a  meeting  of 
the  council  to  hear  objections  to  the  proposed  improvement 
was  not  given.  The  statute  gives  him  the  right  to  wait  until 
the  state  moves  to  foreclose  the  lien  upon  his  property,  and 
then  to  appear  and  make  any  objections  which  would  be  fatal 
to  the  tax98.  But  where  the  charter  does  not  expressly  re- 
quire a  petition  for  the  work,  a  tax  payer  cannot  wait  until 
the  work  is  completed  and  the  auditor  general  has  filed  his 
petition,  to  set  up  a  defect  in  the  petition  presented99.  A 
city  is  not  estopped  from  setting  up  defects  in  a  sewer  be- 
cause it  has  paid  estimates  as  the  work  progressed1.  Where 
property  owners  consent  to  a  waiver  of  charter  provisions  in 
the  levy  of  a  special  assessment,  they  cannot  afterward  set 
up  such  variation  from  the  charter  provisions  as  a  ground 

96.  Steckert     v.     East     Sagi-      kins,  136  Mich.  1,  5. 

naw,  22  Mich.  104.  111.  99.     Auditor  General  v.  Hoff- 

97.  Warren  v.  Grand  Haven,      man,  132  Mich.  198. 

30  Mich.  24.  1.     Lampson  v.  Marshall,  133 

98.  Auditor    General    v.    Cal-      Mich.   251. 


§  376  THE  LAW  OF  TAXATION  526 

for  setting  the  tax  aside2.  So  also,  where  they  petition  for 
an  improvement  in  accordance  with  a  city  charter,  they  will 
thereafter  be  estopped  from  setting  up  the  illegality  of  the 
charter  provisions  in  accordance  with  which  the  improve- 
ment was  made3.  It  is  a  general  rule  that  a  party  who  has 
personal  knowledge  of  the  making  of  an  improvement  and 
that  his  property  is  to  be  assessed  therefor,  but  made  no 
objections  thereto  until  after  the  work  was  completed,  will 
be  estopped  from  complaining  of  the  tax4.  Where  the  char- 
ter required  that  the  board  of  public  works  should  annually 
report  such  sewers  as  they  deemed  necessary  to  be  built  dur- 
ing the  year,  a  tax  payer  cannot  object  to  the  building  of  a 
sewer  not  included  in  such  report  when  he  did  not  appear 
before  the  council  and  object  on  that  ground5.  The  court 
intimates  that  jurisdictional  defects  may  be  waived  by 
estoppel6.  A  person  whose  property  is  omitted  from  the 
roll  by  mistake,  is  not  injured  thereby  and  cannot  complain7. 
Neither  is  a  person  injured  whose  property  is  twice  assessed, 
by  mistake,  and  another  parcel  omitted  from  the  roll,  where 
the  person  whose  property  was  omitted  pays  one  of  the  as- 
sessments supposing  it  to  be  upon  his  own  property8.  A  tax 
payer  who  does  not  tender  the  legal  portion  of  his  tax, 
though  a  part  of  the  levy  on  his  premises  are  illegal,  cannot 

2.  Jackson      v.      Detroit,     10  283,     291;     Stewart    v.     Detroit, 
Mich.   248.  137       Mich.       381;       Shaw       v. 

3.  Motz  v.   Detroit,  18  Mich.  Ypsilanti,    146    Mich.    712;    Cpn- 
495,    528;    Byram    v.    Detroit,    50  stantine    v.    Albion,    148    Mich. 
Mich.  56.  403,    where   the    contract   was    let 

4.  Lundbom   v.   Manistee,   93  before  the  funds  were  provided. 
Mich.      170;     Gates     v.     Grand  5.     Nelson     v.     Saginaw,     106 
Rapids,    134    Mich.    96;    Nowlen  Mich.   659. 

v.    Benton    Harbor,    134    Mich.  6.     Walker  v.  Ann  Arbor,  118 

401;      Tuller     v.      Detroit,      126  Mich.   251. 

Mich.     605;     Fitzbaugh    v.    Bay  7.     Beecher     v.     Detroit,     92 

City,    109    Mich.    586;    Butler    v.  Mich.    268,    274. 

Detroit,     43     Mich.     552,     558;  8.     Gregory     v.     Ann     Arbor, 

Goodwillie  v.  Detroit,  103  Mich.  127  Mich.  454. 


527  CONTRACT,  LIABILITY,  ETC.  §  376 

object  that  the  legal  charges  and  expenses  to  the  time  of  pay- 
ment are  included  in  the  valid  portion9.  One  who  has  signed 
the  petition  for  an  improvement  and  not  objected  to  the 
assessment,  cannot  complain  of  a  temporary  stoppage  of 
water  on  his  premises10.  Where  the  contractor  has  per- 
formed his  work  in  the  presence  of  the  authorized  inspector, 
and  the  city  has  acted  weekly  in  making  payments  upon  re- 
ports of  the  work,  the  city  is  estopped  from  afterwards  set- 
ting up  an  improper  performance  of  the  contract11. 

9.  Powers   v.   Detroit,   11   L.         11.    Schliess  v.  Grand  Rapids, 
N.  742,   139   Mich.   30.  131  Mich.  52,  62;  and  so  is  a  tax 

10.  Hembling  v.  Big  Rapids,      payer;    W.    F.    Stewart    Co.    v. 
89    Mich    1;    Brown    v.    Grand     Flint,  147  Mich.  697. 

Rapids,   83   Mich.   101. 


PART  FOUR 


PLEADING  AND  PRACTICE 


CHAPTER  XXIII. 
FORECLOSURE  OF  TAX  LIEN. 

§377.  Petition  and   Record. 

§378.  Parties  to  Petition. 

§379.  Minors  and  Incompetents. 

§380.  The  Subpoena. 

§381.  Order  of  Hearing. 

§382.  Designation  of  Newspaper. 

§383.  Publication     Substituted  Service. 

§384.  Publication     Details. 

§385.  Proof  of  Publication. 

§386.  Objections  or  Answer  to  Petition. 

§387.  Order  Pro  Confesso. 

§388.  Jurisdiction  of  Court. 

§389.  Hearing  on  Petition  and  Entry  of  Decree. 

§390.  Decree     General  Effect. 

§391.  Decree     Particulars. 

§392.  Decree .  Evidence  of 

§393.  Appeal  from  Decree. 

§394.  Report  of  Sale. 

§395.  Report  of  Sale  to  Auditor  General. 

§396.  Order  of  Confirmation. 

§397.  Certificate  of  Error 

§398.  Setting  Aside  Sale  by  the  Court. 

§399.  Petition  to  Court    Laches. 

§400.  Bill  of  Review. 

§401.  Writs  of  Assistance. 

§402.  Writs  of  Assistance     Notice. 

§403.  Writs  of  Assistance     Service  and  Return  of  Notice. 

§404.  Writs  of  Assistance     Defences  To 


§377.     Petition  and  Record. 

The  law  provides  that  the  petition  filed  by  the  auditor  gen- 
eral shall  be  in  a  record  book,  which  shall  contain  a  descrip- 


FORECLOSURE  OF  TAX  LIEN  ?  '•'>"•  "• 

tion  of  the  land  and  the  taxes  thereon  in  appropriate  col- 
umns; that  such  record  shall  be  ruled  with  columns  for  the 
description,  the  amount  of  taxes,  the  interest,  charges,  etc., 
and  that  it  shall  contain  blank  columns  for  other  specific 
entries  to  be  made  at  the  time  of  the  decree,  and  upon  sale.  It 
is  not  contemplated  that  either  petition  or  decree  shall  con- 
tain any  description  of  the  land  or  statement  of  the  amount 
decreed  to  be  due,  but  that  both  petition  and  decree  shall 
refer  to  the  record  book,  which  is  denominated  the  "Tax 
Record."  The  amount  found  to  be  due  is  entered  in  the 
tax  record  by  the  register  of  the  court,  and  the  amount  for 
which  the  land  is  sold,  and  the  name  of  the  purchasers,  with 
their  addresses,  etc.,  are  to  be  entered  therein  by  the  county 
treasurer  at  the  time  of  sale.  The  decree  is  to  be  entered  of 
record  in  the  court,  and  a  certified  copy  is  to  be  annexed  to 
the  tax  record.  After  the  entry  of  the  decree,  the  entire  tax 
record  goes  to  the  county  treasurer,  and  remains  in  his  office. 
After  the  sale,  the  treasurer  is  required  to  make  and  file  a 
report  of  the  sale,  and  the  sale  stands  confirmed  unless  ob- 
jections are  made  within  eight  days  after  the  time  limited  for 
filing  such  report.  As  soon  as  sales  are  confirmed,  the  treas- 
urer reports  the  same  to  the  auditor  general1.  The  omis- 
sion of  anything  in  the  tax  record  to  indicate  that  the  figures 
represent  dollars  renders  the  decree  void2 ;  but  the  omission 
of  the  dollar  mark  in  the  petition,  however,  or  in  the  pub- 
lished list,  does  not  avoid  the  decree3.  The  fact  that  the 
original  petition  was  filed  with  the  register  and  then  left  with 

1.  C.   L.   §3884,   Tax   Law  of  the  form  prescribed  in  the  law 
1889,  amended  by  Act   No.  262  of   1889   is   held   sufficient.     See 
of   Public  Acts  of  1899,  861.  McKinnon    '  v.      Weston,      104 

2.  Millard  v.  Truax,  99  Mich.  Mich.  G42:   Case  v.  Skinner,  121 
157,  159;  Russell  v.   Chittenden,  Mich.  206. 

123  Mich.  546.  In  Auditor  Gen-  3.  Muirhead  v.  Sands,  111 
eral  v.  Slowman,  83  Mich.  460,  Mich.  487. 

184) 


§  378  THE  LAW  OF  TAXATION  530 

the  county  treasurer  will  not  avoid  a  decree4.  It  is  not  the 
purpose  of  the  statute  to  withdraw  this  tax  record  from  the 
control  of  the  court.  It  is  only  to  remain  in  the  county  treas- 
urer's office  when  not  needed  in  the  clerk's  office,  which  is 
the  office  of  the  court,  and  the  court  may  possess  itself  of 
this  record  at  any  time  and  for  any  purpose  it  may  be  re- 
quired6. It  is  immaterial  that  the  register  has  not  placed  his 
file  mark  thereon,  when  the  order  of  hearing  recites  that  it 
was  filed6.  The  petition  cannot  be  heard  at  the  same  term 
in  which  it  is  filed;  if  it  is,  any  decree  based  thereon  is  void7. 
Lands  bid  off  to  the  state  should  not  again,  while  held  by 
the  state,  be  included  in  the  petition  for  taxes  returned  after 
the  land  was  so  bid  in,  while  such  bids  are  still  held  by 
the  state;  and  a  sale  for  such  subsequent  taxes  will  be  void. 
Such  lands  should  be  included,  however,  if  the  state  has 
parted  with  its  interest8.  The  grouping  of  taxes  in  the  peti- 
tion, if  an  error,  is  cured  by  the  decree.  It  does  not  go  to  the 
jurisdiction  of  the  court9. 

§378.     Parties  to  Petition. 

Inasmuch  as  the  tax  proceedings  are  in  rem,  and  no  per- 
sonal decree  can  be  entered  against  anyone,  the  only  neces- 
sary parties  are  the  owners  of  the  land  at  the  time  the  audi- 
tor general's  petition  is  filed.  It  cannot  interest  the  owner 
that  his  immediate  or  remote  grantor  be  made  a  party.  If 
he  has  a  warranty  deed,  he  may  notify  the  grantor  therein 
to  come  in  and  defend  the  action.  The  state  is  only  inter- 
ested in  the  proceedings  against  the  land10. 

4.  Barnum     v.     Barnes,     118      eral,  121  Mich.  56. 

Mich.  264.  8.     Connecticut,  etc.,  Ins.   Co. 

5.  Mersereau    v.    Miller,    112      v.  Wood,  115  Mich.  444. 

Mich.  103,  105.  9.     Church     v.     Nester,     126 

6.  Mann      v.      Carson,      120      Mich.  547. 

Mich.  631.  10.     Auditor  General  v.  Stiles, 

7.  Ledyard    v.    Auditor    Gen-      83    Mich.   460,   463. 


<  ;  1  FORECLOSURE  OF  TAX  Lll.S  §  379 

§379.     Minors  and  Incompetents. 

The  law  of  1893  requires  the  appointment  of  a  guardian 
ad  liteni  in  tax  proceedings  for  those  under  disability,  even 
though  they  have  a  general  guardian.  A  decree  and  sale 
without,  such  appointment  will  be  set  aside  and  the  person 
under  disability  permitted  to  redeem11.  This  right  is 
statutory  and  cannot  be  extended  to  persons  under  disability 
in  the  absence  of  a  statute.  Prior  to  1893  the  lack  of  a 
guardian  ad  liteni  afforded  no  grounds  for  setting  the  sale 
aside  or  permitting  a  redemption  after  the  time  fixed  by 
statute  had  expired12.  Limitations  of  remedies  are  purely 
statutory.  While  it  may  well  be  doubted  whether  the  legis- 
lature could  enact  an  immediate  bar  to  any  existing  right, 
yet  it  is  clearly  settled  that  to  prescribe  the  period  within 
which  any  right  may  be  enforced  is  within  its  power.  It 
may  or  may  not,  except  disabilities  according  to  its  pleasure. 
If  it  omits  to  say  anything  upon  the  subject,  there  is  no 
power  in  the  courts  to  supply  what  may  have  been  an  acci- 
dental omission13.  While  the  statutes  are  to  be  favorably 
regarded,  it  is  at  the  same  time  to  be  borne  in  mind  that  the 
right  to  redeem  comes  from  the  statute  exclusively,  and  is 
to  be  asserted  only  in  the  cases  and  under  the  circumstances 
which  are  there  prescribed.  The  courts  can  grant  no  exten- 
sion of  the  statutory  time ;  and  they  can  make  no  exceptions 
frorp  the  general  provisions  of  the  statute  to  meet  the  circum- 
stances of  hard  cases;  and  if  the  statute  fails  to  provide  for 
the  cases  of  disability  like  those  of  infancy,  coverture,  or 
absence  from  the  country,  the  courts  are  without  authority 
to  do  so.  .  The  general  statute  requiring  the  appointment  of 

11.  §69,  Act  206,  Public  Acts      Mich.    315,    318,    quoting    Judge 
of    1893;    C.    L.   §3892.      Foegan      Cooley. 

v.  Carpenter,  117  Mich.  89.  13.     Metz  v.  Hipps,  96  Pa.  St. 

12.  Dumphey    v.    Hilton.    121      15. 


§  380  THE  LAW  OF  TAXATION  532 

guardians  ad  litem  in  cases  of  disability  does  not  apply  be- 
cause the  collection  of  a  tax  is  a  proceeding  in  ram14. 

§380.     The  Subpoena. 

The  statute  of  1889  evidently  intended  the  provision  that 
a  subpoena  should  be  served  upon  delinquent  tax  payers  who 
were  non-residents  of  the  state  to  apply  only  to  those  per- 
sons against  whom  the  tax  was  assessed,  whose  names  ap- 
peared upon  the  assessment  roll.  The  statute  nowhere  pro- 
vided any  compensation  for  the  examination  of  records  in 
the  office  of  the  register  of  deeds,  to  determine  in  whom  the 
title  of  record  of  the  lands  returned  delinquent  for  taxes 
stands  and  against  whom  subpoenas  upon  the  filing  of  the 
petition  shall  issue.  It  simply  provides  that  the  register  shall 
issue  a  subpoena  directed  to  each  delinquent  tax  payer  who 
is  a  resident  of  this  state.  The  legislature  evidently  in- 
tended that  the  subpoena  should  issue  and  be  served  upon 
the  person  against  whom  the  tax  was  assessed,  and  whose 
name  appeared  upon  the  tax  roll  for  that  year.  It  evidently 
was  not  the  intention  of  the  legislature  to  make  the  jurisdic- 
tion of  the  court  depend  upon  the  service  of  the  subpoena 
in  that  class  of  cases  where  the  lands  were  not  occupied  and 
were  assessed  as  non-resident,  as  there  could  be  no  means 
by  which  the  register  of  the  court  could  determine  the  real 
owner  of  the  premises  by  any  search  which  he  might  make. 
In  other  cases  the  publication  of  the  petition  and  notice  by 
the  auditor  general  is  sufficient15.  Under  this  statute,  it  was 
mandatory  to  assess  the  property  to  the  owner  or  occupant, 
if  known,  in  order  to  obtain  service  of  the  subpoeria;  and 

14.     Dumphey       v.        Auditor  McGee  v.   Bailey,  86  la.  513. 
General,  123   Mich.  354;   Keeley          15.     Tax   Law  of  1889;   In  re 

v.   Saunders,  99  U.   S.   441,  445;  Wiley,  89  Mich.  58,  62;  Tremble 

Levy  v.  Newman,  130  N.  Y.  11,  v.  Hoffman,  130  Mich.  676. 
13;  Smith  v.  Macon,  20  Ark.  17; 


."•  :  ;  FORECLOSURE  OF  TAX  LIEN 

an  administrator,  executor,  guardian  or  trustee  having  con- 
trol of  the  property,  might  be  treated  as  owner  for  the  pur- 
poses of  assessment.  Real  property  not  in  the  control  of 
such  persons  could  be  assessed  to  the  estate  without  naming 
the  heirs,  until  they  have  given  notice  of  their  names  and 
interest,  and  of  the  division  of  the  estate.  Where  the  estate 
was  in  the  probate  court,  the  supervisor  could  there  obtain 
the  names  of  the  heirs18.  When  the  premises  were  occupied 
by  the  husband  and  wife,  the  wife  owning  the  property,  and 
the  subpoena  was  served  upon  the  husband  alone,  the  court 
obtained  no  jurisdiction  and  the  sale  was  void17.  When  the 
subpoena  was  addressed  to  the  owner,  who  was  a  non-resi- 
dent, a  return  by  the  sheriff  of  the  county  where  the  land 
was  situated,  that  the  defendant  could  not  be  found,  does 
not  confer  jurisdiction.  It  should  have  been  sent  to  the 
county  where  the  party  resided,  if  in  the  state,  and  a  return* 
made  by  the  sheriff  of  that  county18.  In  such  cases,  where 
the  land  was  assessed  to  the  owner,  the  subpoena  must  have 
issued  to  confer  jurisdiction19.  Where  one  owner  was  served 
with  a  number  of  subpoenas,  each  relating  to  a  different 
parcel,  the  sheriff  was  only  entitled  to  charge  one  mileage 
and  one  service  fee20. 

§381.     Order  of  Hearing. 

The  court  may  revoke  an  order  fixing  the  time  of  hearing, 
and  enter  another  order  fixing  a  later  time.  The  statute  con- 
templates that  the  court  shall  make  all  orders  that  may  be 
necessary  to  facilitate  proceedings21.  When  the  order  fol- 

16.  Fowler  v.   Campbell,   100      Mich.  277. 

Mich.  398.  20.    Auditor  General  v.  Baker, 

17.  Taylor    v.    Deveaux,    100      84  Mich.  112. 

Mich.  581.  21.     C.    L.   §3885   as   amended 

18.  Coyle    v.  O'Connor.    121      Tax  Law  862;  Haven  v.  Owen, 
Mich.  596.  121  Mich.  51. 

19.  Nowlan  v.      Hall,      128 


§§  382,  383  THE  LAW  OF  TAXATION  534 

lows  the  form  prescribed  by  statute,  it  is  sufficient  though  it 
does  not  state  the  year  for  which  the  taxes  were  assessable22. 
The  order  for  the  hearing  must  be  entered  at  a  time  prior 
to  that  in  which  the  petition  is  to  be  heard.  A  hearing  in 
the  same  term  in  wich  the  petition  is  filed  is  void23.  A 
failure  to  record  the  order  will  not  avoid  a  tax  sale.  This 
requirement  is  for  the  purpose  of  perpetuating  evidence.  No 
jurisdictional  action  is  based  upon  the  record  and  the  court 
will  not  lose  jurisdiction  because  of  the  failure  of  the  clerk 
to  perform  his  duty24. 

§382.     Designation  of  Newspapers. 

It  is  unnecessary  that  either  the  affidavit  of  publication 
or  the  notice  show  affirmatively  what  newspaper  the  auditor 
general  had  designated  in  which  to  publish  the  petition  and 
notice25.  The  order  designating  the  newspaper  may  precede 
the  filing  of  the  petition26.  The  designation  of  a  newspaper 
as  "Muskegon  Chronicle"  will  support  a  publication  in  the 
"Muskegon  Weekly  Chronicle."  The  auditor  general  does 
not  have  to  make  a  record  of  his  designation;  and  a  news- 
paper that  is  satisfactory  to  him  complies  with  the  statute27. 

§383.     Publication.     Substituted  Service. 

The  statute  makes  the  publication  the  equivalent  of  per- 
sonal service,  and  it  is  therefore  the  duty  of  the  owner  to 
watch  the  proceedings  provided  for  by  law  for  the  fore- 

22.  §62,     Act    206    of    Public       274. 

Acts     of     1893;     C.     L.     §3885;  25.     C.    L.    §3886;    Tax    Law 

Waldron     v.     Auditor     General,  §63;  Watts  v.  liublitz,  99  Mich. 

121   Mich.  56.  586. 

23.  Ledyard  v.  Auditor  Gen-  26.     Wilkins     v.     Keith,     121 
eral     121    Mich.    56;    Roberts   v.  Mich.  66;  Church  v.  Nester,  126 
Loxley,  121   Mich.   63;  Tromble  Mich.  547. 

v.  Hoffman,  130  Mich.  676.  27.     Waldron  v.  Auditor  Gen- 

24.  Burns  v.  Ford,  124  Mich.       eral,    109   Mich.   231,  233. 


535  FORECLOSURE  OF  TAX  LIEN  §  383 

closure  of  the  tax  lien,  and  interpose  any  objection  he  may 
have  to  the  validity  of  the  tax28.  Proceedings  of  this  nature 
are  not  usually  proceedings  against  parties;  nor,  in  the  case 
of  lands  or  interests  in  lands  belonging  to  persons  unknown, 
can  they  be.  They  are  proceedings  which  have  regard  to 
the  land  itself,  rather  than  to  the  owner  of  the  land;  and  if 
the  owners  are  named  in  the  proceedings,  and  personal  notice 
is  provided  for,  it  is  rather  from  tenderness  to  their  interests, 
and  in  order  to  make  sure  that  the  opportunity  for  a  hearing 
shall  not  be  lost  to  them,  than  from  any  necessity  that  the 
case  shall  assume  that  form.  In  all  other  cases  of  proceed- 
ings in  rem,  if  the  law  makes  provision  for  publication  of 
notice  in  a  form  and  manner  reasonable  calculated  to  bring 
the  proceedings  to  the  knowledge  of  the  parties  who  exer- 
cise ordinary  diligence  in  looking  after  their  interests  in  the 
lands,  it  is  all  that  can  be  required29.  The  rule  is  that  a  law 
authorizing  the  imposition  of  a  tax  or  assessment  upon  prop- 
erty according  to  its  value  does  not  infringe  that  provision 
of  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States  which  declares  that  no  state  shall  deprive  any 
person  of  property  without  due  process  of  law;  if  the  owner 
has  an  opportunity  to  question  the  validity  of  the  amount  of 
it,  either  before  that  amount  is  determined  or  in  subsequent 
proceedings  for  its  collection.  That  the  notice  is  not  per- 
sonal but  by  publication,  is  not  sufficient  to  vitiate  it.  Where 
the  statute  prescribes  the  court  in  which,  and  the  time  at 
which,  the  various  steps  in  the  collection  proceedings  shall 
be  taken,  a  notice  by  publication  to  all  parties  interested  to 

28.     C.    L.    53887;    Tax    Law  Campbell,    100    Mich.   398;   Led- 

564;     Muirhead     v.     Sands,     111  yard    v.    Auditor    General,    121 

Mich.    487;      In    re    Wiley,    89  Mich.  56,  58. 

Mich.     58;     Cole    v.     Shelp,    98  29.     Ball  v.  Ridge  Copper  Co. 

Mich.  58:  Ball  v.  Ridge  Copper  118     Mich.     7,     quoting     Judge 

Co.,  118  Mich.  7,  10;  Fowler  v.  Cooley. 


§  384  THE  LAW  OF  TAXATION  536 

appear  and  defend,  is  suitable,  and  one  that  sufficiently 
answers  the  demand  of  due  process  of  law30.  Substituted 
service  may  answer  in  all  cases  which  are  substantially  pro- 
ceedings in  rem31 .  The  published  notice  must  designate  with 
certainty  where  the  sale  or  hearing  will  take  place32.  Where 
the  statute  provided  that  the  sale  should  be  held  at 
the  seat  of  justice,  of  the  county,  at  such  place  "as  the  county 
treasurer  may  select/'  and  the  auditor  general  so  specified  in 
his  notice,  the  county  treasurer  supplementing  this  published 
notice  by  posting  several  notices  that  the  sale  would  be  held 
at  the  court  house,  it  was  held  a  good  and  sufficient  notice33. 

§384.     Publication.     Details. 

The  omission  of  the  dollar  mark  in  the  published  list,  or 
in  other  proceedings  prior  to  the  decree,  does  not  deprive 
the  court  of  jurisdiction  to  hear  the  petition34.  It  is  not 
necessary  that  time  enough  intervene  between  the  last  pub- 
lication and  the  day  fixed  for  the  hearing  to  enable  a  land 
owner  to  reach  the  court  from  where  he  may  be35,  or  that 
ten  days  intervene  between  the  last  publication  and  the  day 
of  hearing36.  The  publication  of  the  notice  in  a  supple- 
ment of  the  newspaper  is  sufficient.  (Newspapers  commonly 
consist  of  two  or  more  unbound  sheets,  which  are  liable  to 
get  separated.  The  designation  of  one  part  as  a  supplement 


30.  Winona,    etc.,    Land    Co.,  33.     Clark      v.      Mowyer,      5 
v.    Minnesota,    159    U.    S.    537;  Mich.  462,   under  §74,  Chap.  20, 
Toolan   v.    Longyear,   13    L.    N.  R.    S.    1846;    Wisner    v.    Daven- 
134,  144  Mich.  55.  port,   5   Mich.   501. 

31.  Francis  v.  Grote,  14  Mo.  34.     Muirhead    v.    Sands,    111 
App.    324;     Eitel    v.    Foote,    39  Mich.  487,  494. 

Cal.  439;   Chauncey  v.  Wass,  35  35.     Waldron  v.  Auditor  Gen- 
Minn.      23;      Kansas      City      v.  eral,  109  Mich.  231. 
Duncan,   135   Mo.   583.  36.     Burns  v.  Ford,  124  Mich. 

32.  Miles  v.  Walker,  4  Mich.  274;  Eldridge  v.  Richmond,  120 
461.  Mich.    586. 


537  FORECLOSURE  OF  TAX  l-IKN 

does  not  make  it  less  a  part  of  the  newspaper37.  The  statute 
does  not  contemplate  the  publication  of  the  list  of  lands  held 
upon  state  bids,  or  the  list  of  state  tax  lands38.  The  pub- 
lication of  the  list  must  not  only  be  in  the  English  language 
but  it  must  be  in  a  newspaper  printed  in  English  and  de- 
signed to  reach  English  readers39.  The  object  of  such  a 
publication  is  to  acquaint  the  people  of  the  proceedings  about 
to  be  taken,  and  the  mass  of  our  people  speaking  and  reading 
only  the  English  language,  the  object  of  the  publication 
would  be  defeated  by  its  publication  in  a  newspaper  pub- 
lished in  a  foreign  tongue40.  Four  insertions  in  a  weekly 
newspaper  is  sufficient,  though  less  than  four  weeks  inter- 
vene between  the  first  publication  and  the  day  of  hearing, 
and  less  than  seven  days  intervene  between  the  last  publica- 
tion and  the  day  of  hearing41.  The  $1.00  charge  for  ex- 
penses cannot  be  collected  until  after  the  publication  of  the 
tax  list42.  If  the  decree  of  sale  omits  this  charge,  or  any 
portion  of  it,  the  auditor  general  cannot  thereafter  add  it  to 
the  sum  to  be  paid48. 

Statutory  Provisions. 

C.  L.  §3887,  Tax  Law,  §64,  provides  for  printing 
the  order  and  petition  for  distribution  where  there  is 
no  newspaper  published  in  the  county. 

37.  Wilkins     v.     Keith,     121      64;    Gurd    v.    Auditor    General, 
Mich.  66;   Mann  v.   Carson,  120      122  Mich.  151. 

Mich.  631,636;  Watts  v.  Bublitz,  41.     Munroe    v.    Winegar,    183 

99    Mich.    586,   588.  Mich.  309. 

38.  Garner    v.    Wallace,    118  42.     Auditor    General    v.    Mc- 
Mich.    387;    Youngs    v.    Povey,  Laulin,  83  Mich.  352,  under  law 
127  Mich.  297.  of  1889.     In  Sayers  v.  O'Connor, 

39.  Vesscher        v.        Ottawa  124   Mich.  256   (law  of  1893),  it 
Judge,   116   Mich.  666.  is  held  that  70  cts.  per  descrip- 

40.  Schaale     v.     Wasey,     70  tion  can  be  collected,  although 
Mich.  414,  419;  Graham  v.  King,  the  charge  for  advertising  was 
50    Mo.   22;   Auditor   General   v.  only  40  cts. 

Hutchinson,  113  Mich.  245,  249;  43.  Warren  v.  Auditor  Gen- 
State  v.  Mayor,  etc.,  14  L.  R.  A.  eral,  131  Mich.  263;  559  of  Act 


§  385  THE  LAW  OF  TAXATION  538 

C.  L.  §3889,  Tax  Law,  §66,  as  amended  in  1899, 
provides:  "The  auditor  general  shall  cause  a  copy  of 
such  order  and  a  copy  of  such  petition  to  be  published 
at  least  once  in  each  week  for  four  successive  weeks 
next  prior  to  the  time  fixed  for  the  hearing  thereof,  in 
some  newspaper  published  and  circulating  in  the  county 
where  such  petition  is  filed,  to  be  selected  by  the  auditor 
general.  Said  order  and  petition  shall  both  be  pub- 
lished in  the  same  newspaper,  the  order  immediately 
preceeding  the  petition.  Provided,  In  such  petition  it 
shall  be  sufficient  to  print  against  each  parcel  the 
'amount  of  taxes,'  'interest/  'charges,'  'total'  due  on 
each.  *'  *  *" 

§385.     Proof  of  Publication. 

The  notice  provided  by  statute,  given  by  publication  only, 
is  sufficient  and  confers  jurisdiction  upon  the  court44.  A 
printer  or  publisher  of  the  paper  may  make  the  affidavit ;  and 
the  fact  that  he  makes  the  affidavit  is  evidence  of  his  knowl- 
edge of  the  publishing  without  a  recital  that  he  knows  the 
facts45.  In  the  absence  of  a  proper  affidavit  of  publication, 
the  court  acquires  no  jurisdiction  and  the  decree  and  sale  are 
void.  The  healing  act  does  not  apply  to  this  affidavit  and  it 
cannot  be  supplied  by  parol  proof46.  Where  the  affidavit 

262  of  Public  Acts  of  1899,  pro-  Mann,  118  Mich.  201. 

vides  a  charge  of  $1.00  on  each  45.     Muirhead    v.    Sands,    111 

description    for    each    year    the  Mich.  487,  494. 

lands  are  delinquent.  A  portion  46.     Benedict  v.  Auditor  Gen- 

of    this    was    omitted    from    the  eral,    104    Mich.    267,    273;    Me- 

decree.  Fadden  v.  Brady,  120  Mich.  699; 

44.     See    Substituted    service.  In    Featherly    v.    Hoffman,    117 

C.   L.   §3889     Tax  Law  §66,  re-  Mich.    42,    only    the    order    and 

quires   the   proof  of  publication  notice    was   pinned   to   the    affi- 

to  be  filed  with  the  clerk  before  davit,    but    not    a    list    of    the 

any  final  order  is  made.     In  re  lands.     This   was   held   a  juris- 

Wiley,    89    Mich.    58;    Hall    v.  dictional  defect. 


539  FORECLOSURE  OF  TAX  LIEN  §  385 

was  not  attached  to  the  printed  notice,  but  the  printed  notice 
was  found  in  the  files,  the  affidavit  will  be  presumed  to  refer 
to  that  notice47.  The  decree  will  be  valid  if  a  proper  affi- 
davit is  filed  at  any  time  prior  to  its  entry,  though  after  the 
time  set  for  the  hearing48.  An  affidavit  is  sufficient  which 
states  the  first  and  last  times  of  publication,  and  that  it  was 
published  once  each  week40.  Where  the  affidavit  refers  to 
the  "annexed  notice,"  which  annexed  printed  slip  contained 
a  copy  of  the  order,  it  will  be  deemed  to  include  the  order 
also50.  The  absence  of  the  affidavit  from  the  files  and  the 
lack  of  calendar  entries  showing  the  filing  of  this  and  other 
papers  may  be  explained  by  parol  proofs  in  a  collateral  at- 
tack, and  from  recitals  in  the  decree51.  An  affidavit  is  good 
when  properly  acknowledged  before  a  notary  public  though 
not  signed  by  the  affiant52.  The  fact  that  the  newspaper  i« 
one  of  general  circulation  need  not  appear  in  the  affidavit, 
if  such  fact  appears  in  the  other  proceedings,  such  as  in  the 
designation  of  the  newspaper,  or  in  an  order  of  the  court63. 
The  fact  that  after  a  proper  affidavit  has  been  filed  it  was 
removed  from  the  clerk's  office  and  inserted  in  the  tax  record, 
does  not  avoid  the  decree54.  An  affidavit  which  does  not  nx 
the  time  of  publication  closer  than  70  days  to  the  hearing, 
not  specifying  any  dates  when  it  was  published,  is  void55. 
Where  two  affidavits  are  filed,  they  may  both  be  considered 
together  in  order  to  determine  their  sufficiency58. 

47.  Mann      v.      Carson,      120      v.      Mayhue,      40      Mich.      196; 
Mich.  631,  634.  Bloomindale    v.    Chittendcn,    75 

48.  Church     v.     Nester,     126      Mich.  305. 

Mich.  547.  53.     Wynkoop        v.        Circuit 

49.  Garner    v.  Wallace,    118      Judge,  113  Mich.  381,  383. 
Mich.  387.  54.     Brooks    v.    Auditor    Gen- 

50.  Spaulding  v.    O'Connor,      eral.  119  Mich.  329. 

119  Mich.  45.  55.     McFadden   v.   Brady,   120 

51.  Hoffman  v.  Pack  Woods      Mich.  696. 

&  Co.,  123  Mich.  74.  56.     Nester     v.     Church,     121 

52.  Wynkoop        v.        Circuit      Mich.  81. 
Judge,   113   Mich.   381;   Merrick 


§  386  THE  LAW  OF  TAXATION  540 

§386.     Objections  or  Answer  to  Petition. 

The  answer  must  set  forth  the  objections  specifically;  and 
if  fraud  is  alleged,  it  must  be  particularly  described57.  It 
is  in  the  discretion  of  the  court  to  allow  the  original  objec- 
tions to  be  made  more  specific,  which  discretion  the  appellate 
court  will  not  generally  review58.  But  an  abuse  of  discre- 
tion in  refusing  to  permit  an  amendment  will  be  reviewed. 
The  ordinary  chancery  practice  as  to  amendments  prevails  in 
these  cases59.  The  fact  that  the  right  of  way  of  a  railroad 
company  is  included  in  a  description  of  land  is  not  such  an 
error  as  will  vitiate  a  sale.  It  would  seem  that  it  could  be 
amended60.  Failure  to  include  certain  lands  in  his  petition 
the  succeeding  year  after  a  petition  had  been  dismissed,  is 
immaterial.  The  lien  is  not  barred,  thought  there  may  have 
been  a  time  when  there  was  no  provision  for  its  enforce- 
ment61. In  these  proceedings,  the  fact  that  irregularities 
may  be  discovered  in  the  proceedings  furnishes  no  obstacle 
to  enforcing  the  state's  lien  for  taxes  equitably  in  the  state, 
or  chargeable  to  the  land  sought  to  be  made  subject  to  state 
lien,  provided  there  is  enough  in  the  proceedings  to  show 
that  the  levy  of  the  tax  is  authorized62. 

Statutory  Provision. 

C.  L.  §3889,  as  amended  in  1809,  Tax  Law,  §66: 
"  *  *  *  Any  person  having  any  interest  in  the 
lands  or  any  portion  thereof  included  or  referred  to  in 

57.  Auditor  General  v.  Stiles,  59.     Auditor    General    v.    Jen- 
83   Mich.   460.  kinson,  90  Mich.  526. 

58.  Baptist          Church          v.  60.     Flint    Land    Co.   v.    God- 
Roberts,      120     Mich.     704;     In  kin,    136    Mich.    668;    Smith    v. 
Auditor     General     v.     Chandler,  Auditor  General,  138  Mich.  582. 
108    Mich.    569,    it   is    held   that  61.     Auditor    General    v.    Car- 
Act  162  of  Public  Acts  of  1895,  penter,  138  Mich.  669;  Croskery 
requiring  a  copy  of  the  answer  v.  Busch,  116  Mich.  288. 

to  be  served  upon  the  prosecut-          62.     Auditor   General   v.   Nor- 
ing    attorney,    and    not    apply    to      rington,  140  Mich.  427. 
pending  proceedings. 


541  FORECLOSURE  OF  TAX  LIEN  §§  387,  388 

said  petition  desiring  to  contest  the  validity  of  any  tax 
shall  file  in  writing  his  objections  thereto  with  the  clerk 
of  the  county  in  which  said  lands  are  advertised  for 
sale  and  serve  a  copy  thereof  on  the  prosecuting  at- 
torney of  the  county,  on  or  before  the  day  fixed  in  said 
notice  for  the  hearing  of  such  petition,  and  shall  not 
be  allowed  to  make  any  objections  not  therein  specified. 
If  on  the  day  fixed  in  such  notice  for  the  hearing  of 
such  petition  or  on  the  day  following  that  day,  it  shall 
be  made  to  appear  to  the  court  that  any  person  has  been 
prevented  from  filing  his  objections  to  any  tax  without 
any  fault  on  his  part,  such  further  time  may  be  granted 
for  that  purpose  as  may  seem  proper,  not  exceeding 
five  days.  *  *  *  " 

§387.     Order  Pro  Confesso. 

The  omission  to  enter  this  order  before  the  decree  of  sale 
is  a  mere  irregularity,  and  will  not  avoid  the  sale83.  A 
pro  confesso  decree  is  as  binding  upon  all  questions  involved 
as  though  the  decree  was  entered  after  contest84. 

§388.     Jurisdiction  of  Court. 

The  statute  clothes  the  court  of  chancery  with  general 
jurisdiction  over  these  proceedings.  It  does  not  lose  juris- 
diction by  the  failure  of  any  officer  to  perform  the  acts  im- 
posed upon  him  within  the  time  fixed  by  law,  unless  the  tax 
payer  is  deprived  of  some  right,  or  unless  the  law,  by  nega- 
tive language,  prohibits  the  doing  of  the  act  at  any  other 
time.  It  should  clearly  appear  that  the  act  was  mandatory ; 
otherwise  it  will  be  held  directory.  If  the  tax  payer  is  not 

63.     Jenkinson       v.       Auditor         84.     Harrington  v.   Dickinson, 
General,      104      Mich.     34,     37;      15  L.  N.  996. 
Hooker  v.  Bond,  118  Mich.  255. 


§  388  THE  LAW  OF  TAXATION  542 

injured  by  the  failure  of  the  officer  to  act  within  the  time 
prescribed,  the  failure  does  not  render  the  decree  and  sale 
void.  "The  fixing  of  an  exact  time  for  the  doing  of  an  act 
is  only  directory,  when  it  is  not  fixed  for  the  purpose  of 
giving  the  party  a  hearing,  or  for  any  other  purpose  im- 
portant to  him"65.  The  filing  of  a  decree  later  than  the  time 
fixed  in  the  statute  does  not  oust  the  court  of  jurisdiction. 
Inasmuch  as  the  proceeding  is  one  in  a  court  of  general  jur- 
isdiction, it  would  require  very  precise  and  prohibitory  lan- 
guage in  the  statute  in  order  to  withold  from  that  court  the 
ordinary  functions  and  power  of  such  a  tribunal,  among 
which  is  not  only  the  right,  but  the  duty,  of  giving  such  full 
consideration  to  all  questions  presented  as  its  judgment  de- 
termines necessary.  No  such  prohibitory  language  is  found. 
The  purposes  and  intention  of  the  act  are  the  collection  of 
taxes,  but  only  of  such  taxes  as  ought  to  be  collected,  and 
judicial  determination  is  invoked  to  determine  what  taxes 
are  justly  due;  and  that  the  court  takes  time  for  the  exam- 
ination and  consideration  of  this  question  does  not  oust  it  of 
jurisdiction66.  Therefore,  it  follows  that  the  sale  may  be 
had  in  less  than  ten  days  after  entering  the  decree67.  In 
order,  however,  to  confer  jurisdiction,  it  must  appear  that 
the  tax  payer  was  properly  brought  before  the  court.  If  he 
should  have  been  served  with  subpoena,  and  was  not,  or 
some  other  juridictional  act  is  omitted,  the  decree  and  sale 
thereunder  will  be  void68.  Jurisdictional  facts,  however, 
cannot  rest  in  parol,  to  be  proven  in  one'case  and  disproved, 
perhaps,  in  another.  The  record  must  be  complete  in 

65.  Hooker      v.      Bond,  118      Mich.  264,  267;  Hooker  v.  Bond, 
Mich.  255,  257.  118   Mich.  255. 

66.  Maish     v.     Arizona,  164          68.     Mann      v.      Carson,      120 
U.  S.  599.  Mich.     631;     In     re     Wiley,     89 

67.  Barnum    v.     Barnes,  118      Mich.  58. 


FORECLOSURE  OF  TAX  LIE N 

itself60.  Under  the  statute,  the  filing  of  the  petition  by  the 
auditor  general  together  with  proof  of  its  proper  publication, 
confers  jurisdiction  upon  the  court;  and  the  failure  of  the 
collector  to  make  a  timely  return  does  not  affect  the  jurisdic- 
tion nor  avoid  a  tax  lien.  The  law  proceeds  upon  the  theory 
of  the  existence  of  a  claim  upon  behalf  of  the  state  against 
the  property  owner  for  taxes  which  have  not  been  paid,  and 
cites  him  into  court  to  answer  a  bill  to  enforce  this  claim 
against  the  property  taxed.  It  is  not  a  sufficient  answer  for 
him  to  show  that  the  treasurer  would  have  been  a  trespasser 
had  he  seized  personal  property,  or  that  he  had  not  demanded 
payment,  or  that  it  might  have  been  collected  had  he  been 
diligent  or  brought  an  action, — all  of  which,  perhaps,  are 
permitted,  and  possibly  directed  oy  law.  In  all  of  these 
things  should  be  proved,  the  fact  would  remain  that  the  tax 
was  due  and  unpaid70. 

§389.     Hearing  on  Petition  and  Entry  of  Decree. 

The  hearing  upon  the  petition  cannot  be  had  in  less  than 
five  days  after  the  time  fixed  in  the  published  notice.  This 
being  a  trial  based  upon  substituted  service,  the  decree  is 
void  if  the  statutory  requirements  are  not  followed ;  as  where 
the  court  adjourn  sine  die  in  less  than  five  days  after  the 
time  fixed71.  But  it  would  appear  that  the  petition  might  be 
heard  at  a  special  term  thereafter,  appointed  for  the  hearing 
of  tax  cases72.  The  decree  is  valid  if  entered  on  the  last  day 
of  the  term,  when  more  than  five  days  intervenes  between 

69.  Watts      v.      Bublitz,      99  Youngs     v.     Clark.     120     Mich. 
Mich.  586,  589.  528;      Aztec      Copper      Co.      v. 

70.  Conlev  v.    McMillan,   120  Auditor  General,  128  Mich.  615; 
Mich.    694,    696;    Auditor    Gen-  McGinley      v.      Calumet,      etc.. 
eral  v.  Sparrow,  116  Mich.  574.  Mining  Co.,  121  Mich.  88;  Platz 

71.  C.     L.    83889;    See    8386,  v.  Englehardt,  138  Mich.  485. 
supra;    Wait    v.    McMillan,    121  72.     Roberts    v.    Loxley,    121 
Mich.    95;     Peninsular    Savings  Mich.  63. 

Bank  v.  Ward,  118  Mich.  87,  93; 


§  389  THE  LAW  OF  TAXATION  544 

that  time  and  the  day  originally  fixed  for  the  hearing73. 
When  the  court  adjourns  from  day  to  day  for  five  days  after 
the  day  set  for  the  hearing,  and  then  enters  a  decree,  the 
decree  will  be  valid74.  But,  although  more  than  five  days 
elapsed,  yet,  if  there  were  only  two  court  days  between  the 
day  set  for  the  hearing  and  the  entry  of  the  decree,  the  decree 
will  be  void75.  The  tax  law  of  1899  provided  that  if  the 
petition  was  not  heard  on  the  day  fixed  for  the  hearing,  it 
should  stand  continued  from  day  to  day  during  the  term; 
and  that  if  no  decree  was  granted  at  that  term,  the  auditor 
general  should  file  a  new  petition76.  Under  this  provision, 
the  court  lost  jurisdiction  at  the  end  of  the  term  and  could  not 
thereafter  hear  that  petition  at  a  succeeding  term77.  Where 
the  decree  is  dated  the  day  of  the  hearing,  but  not  presented 
until  five  days  thereafter,  and  the  court  was  in  session  each 
day,  it  will  be  valid78.  Where  the  decree  is  entered  within 
five  days  from  the  day  set  for  hearing,  but  the  court  remains 
in  session  for  five  days  from  such  date,  it  is  not  a  fatal  irregu- 
larity79. When  the  decree  is  entered  in  vacation,  without 
notice,  it  will  be  reopened  on  a  petition  seasonably  made80. 

73.  Allen      v.      Cowley,      128          76.     §59,  Act  195,  Public  Acts 
Mich.     530;    Wabs.    Lt.     Co.    v.      of  1889. 

Davis,  141  Mich.  389.   .  77.     Muirhead      v.      Bergland, 

74.  Gates     v.     Johnson,     121      111  Mich.  655. 

Mich.  663;  In  Brown  v.  Hough-  78.     Wolverine    Land    Co.    v. 
ton,  etc.,  Co.,  123  Mich.  117,  the  Davis,  141  Mich.  187. 
court  continued  in  session  four  79.     Godell    v.    Auditor    Gen- 
days    after   the    time    fixed,   and  eral.    143    Mich.   240,   construing 
then  entered  a  decree  on  a  sub-  §§62   and  66.      * 
sequent     adjourn     day.       Held,  80.     Hoffman    v.    Flint    Land 
valid.      Brown    v.    Napper,    125  Co.,  144  Mich.  564.     In  Temple 
Mich.   117.  v.    Preston,    150    Mich.   486,    the 

75.  In    Miller   v.    Brown,   122  time    was    entered    in    vacation, 
Mich.   547,   the  hearing  was   set  four  days   after  notice  of  hear- 
for    Sept.    30;    court    then    ad-  ing.      NO    one    having    sought    to 
journed  to  Sept.  30th,  and  then  contest  the   decree,  it  was  held 
to    Oct.    4th,   when    decree    was  valid. 

entered. 


545  FORECLOSURE  OF  TAX  LIEN  §  390 

§390.     Decree.     General  Effect. 

The  proceedings  in  the  chancery  court  in  ordering  a  sale 
of  lands  for  taxes  are  not  within  its  ordinary  jurisdiction. 
Such  jurisdiction  is  special  and  statutory,  and  must  be  strictly 
confined  to  the  limits  of  the  statute  conferring  it.  Prior  to 
1882  the  court  of  chancery  had  no  power  to  decree  what 
lands  should  be  sold  for  taxes,  or  to  prescribe  the  manner 
and  time  of  sale.  The  only  power  now  possessed  by  the 
court  is  that  conferred  by  the  statute.  Therefore,  when  the 
statute  provides  upon  what  grounds  a  decree  or  sale  may  be 
set  aside,  whether  by  the  court  or  by  the  auditor  general,  it 
may  be  done  notwithstanding  the  decree  of  the  chancery 
court,  since  the  jurisdiction  of  the  chancery  in  these  matters 
is  special  and  limited,  and  within  the  statutory  limits,  within 
the  control  of  the  auditor  general81.  While  a  stranger  to  the 
judgment  may,  if  injuriously  affected  thereby,  collaterally 
impeach  such  judgment  by  showing  that  the  court  had  no 
jurisidiction  of  the  person  of  the  defendant  in  such  judg- 
ment, or  of  the  subject  matter,  or  that  it  was  obtained  by 
fraud  or  collusion  between  the  parties  to  it,  yet,  where  there 
is  jurisdiction  of  the  person  and  the  subject  matter,  and  the 
judgment  is  not  the  result  of  fraud  and  collusion  between 
the  parties  to  it,  it  is  material  to  establish  only  the  fact  of 
such  judgment  and  those  legal  consequences  which  result 
from  the  fact,  and  the  record  must  be  regarded  as  conclusive 
even  as  to  strangers.  The  object  of  these  rules  is  to  give 
stability  and  security  to  judgments,  decrees  and  sentences, 
when  made  by  courts  having  jurisdiction  of  the  person  and 
the  subject  matter.  They  are  therefore  founded  in,  and  sup- 
ported by,  a  sound  public  policy,  which  demands  of  the  court 

81.  See  Ejectment,  5419.  123;  Connecticut,  etc.,  Ins.  Co. 
Wood  v.  Bigelow,  115  Mich.  v.  Wood,  115  Mich.  444,  452. 

(35) 


§  391  THE  LAW  OF  TAXATION  546 

an  inflexible  adherence  to  them82.  In  a  court  of  limited 
jurisdiction  in  regard  to  property,  if  the  alleged  value  is 
within  the  limits,  the  court  will  have  jurisdiction,  although 
the  actual  value  may  exceed  the  limit;  and  the  court  may 
determine  that  the  value  is  too  great,  but  after  that  fact  is 
determined,  the  court  simply  loses  jurisdiction  to  proceed 
further.  It  does  not  lose  it  from  the  beginning,  so  as  to  make 
all  parties  trespassers,  as  it  would  if  its  jurisdiction  depended 
upon  the  fact  of  value.  Therefore,  where  the  jurisdictional 
defect  does  not  appear  upon  the  face  of  the  record,  it  must 
be  concluded,  not  that  the  court  has  jurisdiction  of  the  sub- 
ject matter,  but  that  the  assumption  of  such  jurisdiction  and 
the  rendition  of  judgment,  although  under  a  mistake  of  fact, 
involve  the  finding  that  the  necessary  facts  exist  to  give 
jurisdiction,  as  conclusively  as  though  the  issue  were  express- 
ly made.  In  such  a  case  the  decree  cannot  be  assailed  col- 
laterally by  showing  that  the  court  was  mistaken  in  the  facta 
upon  which  it  based  decree.  In  other  words,  jurisdiction  in 
the  court  of  the  subject  matter  always  depends  upon  the 
allegations,  and  never  upon  the  facts83;  and  a  judgment  by 
default  bars  the  parties  as  conclusively,  collaterally  as  though 
they  had  framed  issues,  and  had  a  trial,  and  been  defeated84. 

§391.     Decree.     Particulars. 

Where,  however,  the  court  has  obtained  jurisdiction  to 
hear  the  tax  proceedings,  all  matters,  up  to  and  including 
the  rendition  of  the  decree,  are  foreclosed,  and  conclusive 
upon  all  parties  and  cannot  be  collaterally  attacked  any  more 

82.     See    Collateral    attack    of  Lewis,  109  Ind.  62. 
decree.      Haven    v.    Owen,    121          83.     Peninsular  Savings   Bank 

Mich.   51,   52;    Koren   v.   Roern-  v.  Ward,  118  Mich.  87,  97. 
held,  7  111.  App.  646;  Allured  v.          84.     Peninsular  Savings   Bank 

Valler,  112  Mich.  357;  Miller  v.  v.    Ward,    118    Mich.    97,    107; 

Smith,  115  Mich.  427;  Philips  v.  Goegel  v.  Iffla,  48  Hun.  21. 


.".  1  ;  FORECLOSURE  OF  TAX  LIEN  ?  '•'>'•>  1 

than  any  other  decree85.  The  illegality  of  the  taxes  or  other 
defects  prior  to  the  decree  cannot  thereafter  be  raised86.  The 
decree  cannot  thereafter  be  opened  or  set  aside  on  petition 
except  for  the  statutory  reasons,  or  lack  of  jurisdiction87. 
The  proceeding  is  essentially  one  iw  rent  against  the  prop- 
erty. No  personal  decree  can  be  entered  against  the 
delinquent  tax  payer,  whether  that  term  applies  to  the  owner 
of  the  lands  when  assessed  or  to  the  owner  at  the  time  of 
filing  the  petition88.  The  decree  forecloses  all  objections  that 
might  have  been  made ;  and  they  cannot  thereafter  be  made 
on  appeal89.  A  variance  in  the  date  between  the  original 
decree  and  the  certified  copy  attached  to  the  tax  record  is  not 
fatal  to  the  proceedings90.  It  is  sufficient  where  the  decree 
is  countersigned  by  the  "Register"  instead  of  by  the  county 
clerk91.  A  decree  of  sale  against  several  platted  lots  as  one 
description  is  such  a  determination  that  the  description  is 
proper  that  it  cannot  be  reviewed  on  petition92.  The  amounts 
fixed  as  charges  upon  the  land  must  be  entered  in  the  tax 

85.  In  re  Wiley  89  Mich.  58;  Mich.    663;    Burns   v.    Ford,  124 
Cole     v.     Shelp,     98     Mich.     56;  Mich.  274;  Spaulding  v.  O'Con- 
Hilton   v    .Dumphey,    113    Mich,  nor,  119   Mich.  45.  48;   Benedict 
241.  v.    Auditor    General,    104    Mich. 

86.  Watts      v.      Bublitz,      99  269;     Brooks    v.    Auditor    Gen- 
Mich.   586;    Auditor    General    v.  eral,  119  Mich.  329,  holding  that 
Griffin,    140    Mich.'  427;    Hall  v.  the   fact  that  the  decree  is  not 
Mann,     118      Mich.     201,     204;  enrolled    does    not    change    the 
Auditor  General  v.  Sparrow,  116  rule;   Shefferly  v.  Auditor  Gen- 
Mich.    585;    Muirhead   v.   Sands,  eral,  120  Mich.  455;  Tromble  v. 
ill    Mich.  487;  Auditor  General  Hoffman,  130  Mich.  676. 

v.     Hutchinson.    113    Mich.    245;  88.     Auditor  General  v.  Stiles, 

Sayers    v.    O'Conner,    124    Mich.  83   Mich.  460. 

256,    holding    an    excess    of   tax  89.    Auditor  General  v.  Maier, 

barred;  Berkey  v.  Burchard,  119  95   Mich.    127. 

Mich.    101 ;     Shelden    v.    Marion  90.     Burns  v.  Ford,  124  Mich. 

Twp.,   101   Mich.  256:   Wilkin   v.  274,   277. 

Keith,  121  Mich.  66;  Kneeland  v.  51.     Mersereau   v.   Miller,    112 

Hull,  110  Mich,  r.fi:  Ball  v.  Ridge  Mich.  103. 

Copper  Co.,  118  Mich.  7,  10.  92.     Kneeland     v.     Hull,     116 

87.  Nester     v.     Church.     121  Mich.  55. 
Mich.  81;  Gates  v.  Johnson,  121 


§  391  THE  LAW  OF  TAXATION  548 

record  before  it  leaves  the  control  of  the  court.  If  the 
amounts  are  afterwards  placed  therein,  the  decree  will  be 
void,  and  a  sale  thereunder  set  aside  upon  petition93.  So, 
the  decree  is  void  if  it  have  no  dollar  mark  or  signs94.  The 
enrollment  of  the  decree  is  not  a  necessary  requisite  to  the 
sale  of  the  land95,  and  the  entitling  the  decree  wherein  the 
state  appears  as  complainant  is  harmless96.  The  decree  as 
recorded  need  not  contain  the  descriptions  of  land  ordered 
sold.  The  statute  prescribes  the  form  and  clearly  indicates 
that  the  tax  record,  with  its  entries,  shall  be  considered  a  part 
of  the  decree  by  reference.  It  was  not  intended  that  the 
record  or  any  part  of  it  should  be  recorded97.  The  omission 
of  the  clerk  to  record  a  decree  properly  signed  will  not  in- 
validate the  sale98.  Under  the  Tax  Law  of  1889,  the  state 
was  not  liable  for  costs  to  a  defendant  in  a  tax  case ;  where 
one  owner  has  several  parcels  of  lands  returned,  the  sheriff 
cannot  charge  fees  for  each  parcel  as  part  of  the  legal  costs99. 
Where  a  tax  proceeding  is  appealed  to  the  supreme  court, 
and  affirmed,  the  decree  of  the  supreme  court  need  not 
specify  the  taxes,  but  may  designate  them  by  reference  to  the 
decree  and  tax  record  of  the  lower  court1.  Describing  land 

93.  Morgan   v.   Tweedle,  119  v.  Peters,  118  Mich.  45;  Hall  v. 
Mich.  350;  Millard  v.  Truax,  99  Mann,  118  Mich.  201;  Wilkin  v. 
Mich.  157;  Giddings  v.  Giddings,  Keith,  121"  Mich.  66,  74;  Hooker 
70   la.   486;    Easterling  v.  State,  v.  Bond,  118  Mich.  255. 

35     Mass.     210;     First     Baptist  96.     Muirhead    v.    Sands,    111 

Church    v.    Roberts,    120    Mich.  Mich.  487. 

704;  Wilkin  v.  Keith,  121  Mich.  97.     Barnum    v.     Barnes,    118 

66.    70;     Case    v.     Skinner,     128  Mich.   264,   266. 

Mich.    208,    where    no    amounts  98.     Hoffman  v.  Pack  Woods 

were  filled  in.  &  Co.,  123  Mich.  74;  Hooker  v. 

94.  Millard      v.      Truax,      99  Bond,   118   Mich.   255;    Burns  v. 
Mich.   157;  Nowlen  v.  Hall,  128  Ford,    124    Mich.    274;    Gates    v. 
Mich.    274,    278.  Johnson,   121   Mich.   663,  665. 

95.  In     Barnum     v.     Barnes,  99.      Auditor  General  v.  Baker, 
118    Mich.    264,    267,    it    is    held  84      Mich.      113;      Sherman      v. 
that    2    H.    S.    §§6648-9,    C.    L.  Sanilac  Board,  84  Mich.  108. 
§§463-4,  do  not  apply  to  enroll-  1.     Newton    v.    Auditor    Gen- 
ing  decree  before  sale.    Youngs  eral,  131  Mich.  547. 


."•  I '.'  FORECLOSURE  OF  TAX  LIEN 

as  being  in  an  incorporated  city,  but  omitting  the  township  it 
is  in,  is  harmless2.  Not  exempting  a  railroad  right  of  way 
will  not  avoid  the  decree  as  to  the  land  not  within  the  right 
of  way3.  The  omission  of  the  dollar  mark,  or  something  to 
indicate  what  the  figures  in  the  decree  mean,  is  fatal  to  the 
proceeding.  See  §377,  supra. 

Statutory  Provisions. 

C.  L.  §3889,  as  amended  in  1899,  Tax  Law,  §66; 
«*  *  The  court  shall  give  precedence  to  the  hearing  of 
such  petition  over  all  other  business  shall  examine,  con- 
sider and  determine  the  matters  therein  stated  and 
objections  made,  in  a  summary  manner  without  other 
pleadings,  and  make  final  decree  thereon  as  the  right 
of  the  case  may  be.  The  taxes  specified  in  the  petition 
shall  be  presumed  to  be  legal  and  a  decree  be  made  there- 
for unless  the  contrary  is  proved.  *  *  *  *  If  the  lands 

of  two  or  more  persons  have  been  assessed  together, 
the  court  may,  if  practicable,  separate  the  same  and  ap- 
portion to  each  parcel  its  just  proportion  of  the  taxes, 
interest  and  charges.  If  any  tax  shall  be  found  illegal, 
such  part  shall  be  set  aside  and  the  remaining  tax  shall 
be  decreed  valid.  The  total  amount  of  taxes,  interest 
and  charges,  as  fixed  by  the  court,  shall  be  entered  by 
the  register  of  the  court  opposite  each  parcel  of  land  in 
the  column  of  said  record  under  the  heading  'Amount 
decreed  against  lands.'  If  the  court  shall  make  any 
order  setting  aside  the  taxes  on  any  parcel  of  land,  or 
any  part  thereof,  or  any  special  order  relating  to  any 
particular  parcel  of  land,  or  taxes  thereon,  a  brief  entry 

2.  Smith  v.  Auditor  General,      136  Mich.  668;  Smith  v.  Auditor 
138  Mich.  582.  General,  138  Mich.  582. 

3.  Flint  Land  Co.  v.  Kodkin, 


§§  392,  393  THE  LAW  OF  TAXATION  550 

of  said  order  shall  be  made  upon  the  record  opposite 
such  land  or  tax,  which  shall  be  signed  by  the  judge  of 
the  court,  either  by  his  full  name  or  initials,  and  such 
entry  shall  have  the  same  effect  as  if  made  and  entered 
as  a  part  of  a  final  decree.  At  least  ten  days  prior  to 
the  time  fixed  for  the  sale  of  such  lands,  the  court  shall 
make  a  final  decree  in  favor  of  the  State  of  Michigan 

for  such  taxes,  interest  and  charges  as  shall  be  valid, 

*   *   * 

The  court  may  decree  costs  against  persons  contesting 
any  tax  as  may  be  equitable,  if  the  tax,  or  any  part 
thereof  which  remains  unpaid  be  adjudged  valid." 

C:  L.  §3890,  as  amended  in  1899,  Tax  Law,  §67, 
gives  the  form  of  the  decree;  provides  that  execution 
may  issue  against  any  contestant  for  costs;  for  con- 
tinuing the  hearing  on  the  petition,  and  entering  decrees 
from  time  to  time  as  to  such  portions  as  are  disposed  of; 
and  for  the  filing  of  a  new  petition  as  to  such  lands  as 
are  not  disposed  of. 

§392.     Decree.     Evidence  of 

The  entry  of  a  decree  in  the  chancery  record  with  the 
name  of  the  circuit  judge  attached,  and  countersigned  by  the 
register  of  the  court,  is  sufficient  evidence  that  a  decree  was 
made  and  filed,  though  no  decree  is  found,  nor  a  calendar 
entry  of  one4. 

§393.     Appeal  from  Decree. 

Where  no  case  is  settled,  an  appeal  will  not  be  lost  but  the 
cause  will  stand  for  trial  upon  the  pleadings.  The  pre- 
sumption will  be  that  there  was  evidence  below  to  support 

• 
4.     Spaulding     v.      O'Connor,      119  Mich.  45. 


551  FORECLOSURE  OF  TAX  LIEN  £  :J'J-t 

the  decree.  The  claim  of  appeal,  and  appeal  bond,  must  be 
made  and  furnished  within  the  twenty  days  required  by 
statute,  or  the  appeal  will  be  dismissed5.  Objections,  not 
raised  in  the  court  below,  will  be  heard  on  appeal;  but  in  a 
meritorious  case,  where  a  valid  defense  has  been  overlooked, 
the  supreme  court  may  remand  the  case  with  leave  to  amend 
the  pleadings6.  Ex  partc  affidavits  used  in  settling  the  case 
cannot  be  considered  on  an  appeal  from  the  decree7.  The 
auditor  general  does  not  abandon  his  petition  because  by 
mistake  an  employe  had  charged  the  taxes  back  to  the 
county8.  An  invalid  decree  should  be  annulled  by  reversal 
instead  of  being  permitted  to  stand,  and  both  parties  placed 
as  they  were  before  the  decree  was  entered9.  An  appeal, 
under  §70,  from  the  decree  of  sale,  is  a  general  chancery 
appeal,  and  no  bond  is  required  under  §14010. 

$394.     Report  of  Sale. 

The  statute  contemplates  that  the  fact  and  date  of  sale 
shall  be  verified  by  the  report  of  the  county  treasurer.  The 
lack  of  such  report  will  invalidate  a  sale,  and  a  bill  will  lie 
against  the  purchaser  and  auditor  general  to  quiet  title11. 
Although  the  treasurer  may  not  have  offered  the  land  for 
sale  a  second  time  before  bidding  it  off  to  the  state,  yet  if  the 
land  owner  who  knows  of  the  decree  of  sale,  fails  to  object 


5.  Carney     v.      Baldwin,     95  7.     Aztec      Copper      Co.      v. 
Mich.  442.  Auditor  General,  128  Mich.  615. 

6.  Hall    v.    Mann,    118    Mich.  8.      Auditor  General  v.  Kanaar, 
201,    where    a    defense    of    non-  114  Mich.  602. 

payment    of    tax    liens    had    not  9.     State    v.    Eddy,    58    Mich. 

been  made.  Hooker  v.  Bond,  118  318. 

Mich.    255,    where    fact    that    a  10.     Hayward     v.     O'Connor, 

certified  copy  of  the  decree  had  142  Mich.  230. 

not    been    attached    to    the    tax  11.     Millard      v.      Truax,      99 

record    was    not    clearly   shown  Mich.  157;  McFadden  v.  Brady, 

in  the  petition  or  raised  in  the  120   Mich.   699. 

lower  court. 


§  395  THE  LAW  OF  TAXATION  552 

before  the  confirmation  of  the  sale,  he  cannot  thereafter 
object,  though  such  omission  is  sufficient  to  avoid  confirm- 
ation if  made  seasonably12.  The  statute  contemplates  that 
the  report  shall  be  filed  with  the  county  clerk  and  remain  in 
his  office.  When  so  filed,  it  operates  as  a  notice  to  all  persons 
concerned.  It  cannot  be  regarded  as  having  thus  been  filed 
when  attached  to  a  record  which  the  statute  says  shall  re- 
main with  the  county  treasurer,  although  the  filing  of  the 
report  is  chronologically  a  condition  subsequent.  A  com- 
pliance with  the  statutory  requirements  is  essential  to  the 
validity  of  the  sale,  and  the  report  is  evidence  of  such  com- 
pliance. For  the  purpose  of  giving  effect  to  the  deed,  and 
vesting  the  title,  the  filing  of  the  report  must  be  treated  as 
a  condition  precedent.  The  purchaser  is  bound  to  see  that 
the  law  has  been  complied  with ;  and  the  report  cannot,  after 
the  period  of  redemption  has  expired,  be  amended13.  The 
report  is  sufficient  if  it  shows  that  the  lands  were  offered  on 
the  first  day  of  sale,  referring  to  the  tax  record  for  partic- 
ulars. It  need  not  affirmatively  appear  that  the  lands  were 
offered  from  day  to  day  so  far  as  collateral  attack  is  con- 
cerned14. Parol  proof  is  admissible  to  show  that  a  report 
was  in  fact  made  though  none  can  be  found  and  there  is  no 
entry  of  one  in  the  calendar15. 

§395.     Report  of  Sale  to  Auditor  General. 

This  report  will  be  presumed  to  have  been  made;  but  if 
not,  it  is  an  irregularity  that  will  not  avoid  the  sale16.  A 
report  made  prematurely,  and  not  showing  that  the  lands 

12.  Hilton    v.    Dumphey,  113  Mich.    264,    267;    Detroit,    etc., 
Mich.   241.  Ins.  Co.  v.  Wood,  118  Mich.  31. 

13.  Jenkinson       v.       Auditor  15.     Hoffman  v.  Pack  Woods 
General,  104  Mich.  34,  37.  &   Co.,   123   Mich.  74. 

14.  Jenison    v.    Conklin,    114  16.     C.    L.    §3893.     Church    v. 
Mich.  9;  Barnum  v.  Barnes,  118  Nester,  126  Mich.  547. 


553  FORECLOSURE  OF  TAX  LIEN  §§  396,  397 

were  offered  in  their  order,  does  not  constitute  a  juris- 
dictional  defect17.  Ten  days  after  the  confirmation  is  a 
reasonable  time  in  which  to  make  this  report18. 

^396.     Order  of  Confirmation. 

Under  the  provisions  of  the  statute  that  all  sales  shall  stand 
confirmed  unless  objections  are  filed  thereto  within  eight  days 
after  the  time  limited  for  filing  the  report,  without  the  entry 
of  an  order,  it  is  unnecessary  to  enter  any  final  order  of 
confirmation.  After  the  expiration  of  the  eight  days,  the 
sale  will  not  be  set  aside  except  for  the  statutory  reasons  or 
jurisdictional  defects19. 

§397.     Certificate  of  Error. 

The  auditor  general  is  authorized  to  issue  a  certificate  of 
error  for  statutory  reasons,  setting  aside,  if  necessary,  a 
decree  of  the  chancery  court20. 

Statutory  Provision. 

C.  L.  §3921,  §98  of  Act  154  of  Public  Acts  of  1895, 
provides  that  if  the  auditor  general  shall  discover,  before 
a  conveyance  of  said  land  is  executed  and  delivered : 

"First.     That  the  land  so  sold  was  not  subject  to 

17.  Burns  v.  Ford,  124  Mich.  106    Mich.    644;    Jakabowski    v. 
274.  Auditor   General,   144   Mich.   46, 

18.  Detroit,  etc.,   Ins.   Co.  v.  when    it    is    held    that    the    six 
Wood,    118    Mich.    31,    37;    In  months    limitation    provided    in 
Youngs  v.  Peters,  118  Mich.  45,  J143    of   the    tax   law   does   not 
the  time  was  12  days.  run    against    the    owner    of    an 

19.  C.    L.    §3893;    Conley    v.  unrecorded    land    contract    who 
McMillan,    120    Mich.    694,   697;  has  paid  the  taxes  in  question, 
Hilton   v.   Dumphey,   113    Mich,  and   received   no  notice   of  tax 
241;    Dumphey    v.    Hilton.    121  purchase.     In    such   a   case   the 
Mich.   315.  Auditor    General    will   be   com- 

20.  Wood    v.    Bigelow,    115  pelled   to  issue  a  certificate  of 
Mich.    123,   where   the   tax   had  error. 

been    paid.      Bump    v.    Jepson, 


§397  THE  LAW  OF  TAXATION  554 

taxation  at  the  date  of  the  assessment  of  the  taxes  for 
which  it  was  sold ;  or 

Second.  That  the  taxes  had  been  paid  to  the  proper 
officer  within  the  time  limited  by  law  for  the  payment 
or  redemption  thereof,  or 

Third.  That  such  sale  was  in  contravention  of  any 
of  the  provisions  of  this  act;  or 

Fourth.  That  a  certificate  that  no  taxes  were 
charged  against  said  lands  has  been  given  by  the  proper 
officer,  within  the  time  limited  by  law  for  the  payment 
or  redemption  thereof,  the  auditor  general  shall  with- 
hold a  conveyance  of  such  lands  *  *  *. 

If  the  discovery  is  not  made  until  after  the  con- 
veyance has  been  executed  and  delivered,  a  certificate 
of  error  may  be  issued  in  proper  form  for  record." 
In  so  doing,  he  is  not  limited  as  to  the  time  in  which  he 
may  act.     This  provision  is  given  a  liberal  construction  to 
the  end  that  a  tax  payer  justly  entitled  to  relief  may  not  be 
cut  off  from  all  remedy21.     The  action  of  the  auditor  gen- 
eral is  not  discretionary  and  will  be  enforced  by  mandamus 
when  a  party  in  interest  brings  himself  within  the  terms  of 
the  statute22.     Where  the  legality  of  the  sale  is  involved  in 
a  chancery  proceeding,  the  court  will  not  issue  a  mandamus 
to  compel  the  issuance  of  a  writ  of  error ;  nor  will  the  court 
examine  to  see  whether  the  same  relief  prayed  for  can  be 

21.  Hand  v.  Auditor  Gen-  a  reassessment  of  the  tax, 
eral,  112  Mich.  597.  In  Knee-  while  in  the  tax  was  not  re- 
land  v.  Wood,  117  Mich.  174,  assessed  but  was  returned  and 
176,  where  the  township  treas-  the  land  sold  tnereon. 
urer  had  reported  to  the  owner  22.  Hubbard  v.  Auditor  Gen- 
that  there  were  no  taxes  eral,  120  Mich.  505,  the  tax  deed 
assessed  on  his  piece,  being  in  is  held  void  because  the  tax  title 
legal  effect  a  payment.  In  purchaser  did  not  pay  the  taxes 
Youngs  v.  Auditor  General,  118  of  1896,  their  application  for 
Mich.  550,  where  the  owner  was  purchase  having  been  corn- 
misled  by  the  council  ordering  pleted  Dec.  2,  1896. 


555  FORECLOSURE  OF  TAX  LIEN  §  397 

granted  in  the  mandamus  proceedings23.  The  certificate  of 
error,  if  a  judicial  act,  is  one  of  a  limited  tribunal,  whose 
jurisdiction  should,  under  ordinary  rules,  appear  upon  the 
face  of  the  proceedings;  and  any  certificate  which  shows 
affirmatively  that  it  was  issued  upon  a  supposed  error  or 
defect,  which  clearly  was  not  such  as  matter  of  law,  should 
be  treated  as  void,  and  will  not  affect  the  deed  it  attempts  to 
cancel.  It  will  not  be  presumed  to  be  issued  for  other  reasons 
than  those  stated24.  The  auditor  general  is  limited,  in  grant- 
ing this  certificate,  to  the  reasons  mentioned  in  the  statute; 
and  he  cannot  cancel  a  deed  of  sale,  or  certificate,  for  irreg- 
ularities occurring  prior  to  the  decree25.  He  may,  however, 
cancel  the  sale,  after  the  decree,  when  it  appears  that  the  tax 
was  paid  or  offered28,  or  that  the  court  did  not  have  juris- 
diction27. A  petition  will  also  lie  to  set  aside  the  decree  of 
sale  where  the  tax  payer  was  misled  by  such  an  erroneous 
statement2*.  The  payment  of  the  tax,  or  the  erroneous  certifi- 
cate mentioned  in  the  statute,  cannot  be  set  up  as  a  defense 
in  an  action  to  recover  the  premises  under  the  tax  deed,  but 
must  be  made  available  either  by  an  application  to  the 
auditor  general  to  issue  a  certificate  of  error,  or  in  a  motion 

23.  Smith    v.    Auditor    Gen-  taxes,  the  Auditor  General  may 
eral,  15  L.  N.  65,  151  Mich.  622.  cancel    the    deed    more    than    a 

24.  Vetterly   v.    McNeal,    129  year   after   it    issued;    Hay  ward 
Mich.  507,  512.  v.    Auditor    General,    147    Mich. 

25.  Cole  v.  Auditor  General,  591. 

132  Mich.    262,    to    this    extent         27.    Rumsey      v.      Griffin,      138 
over-ruling     Gurd     v.     Auditor      Mich.  413. 

General,  122  Mich.  151;  Flint  28.  Hough  v.  Auditor  Gen- 
Land  Co.  v.  Auditor  General,  eral,  116  Mich.  663;  Hoffman  v. 

133  Mich.   542.  Auditor  General,  136  Mich.  689; 

26.  Young  v.  Auditor  General,  Hayward      v.      O'Connor,      145 
118  Mich.  550;  Hand  v.  Auditor  Mich.  52.    In  Youngs  v.  Auditor 
General,    112    Mich.   597;    Knee-  General,     118     Mich.     550,     and 
land    v.    Wood,    117    Mich.    174,  Kneeland  v.  Hull,  118  Mich.  56, 
where  a  tax  receipt  shows  only  90    days    time    was    granted    in 
county,      state,     highway     and  which  to  obtain  the  certificate, 
school    taxes,    but    no    village 


§  397  THE  LAW  OF  TAXATION  556 

to  set  aside  the  decree,  under  the  statute.  The  court,  where 
an  action  of  ejectment  or  other  proceedings  are  pending, 
may  grant  time  in  which  to  make  such  application29.  Where 
a  deed  is  illegally  given  to  one  applicant  because  of  the  non- 
payment of  delinquent  taxes,  and  an  application  is  made  by 
another  party  who  pays  such  taxes,  a  bill  will  lie  to  set  aside 
the  first  deed  and  compel  the  issuing  of  a  deed  on  the  last 
application30.  Where  the  owner  of  the  original  title  obtains 
a  deed  under  such  circumstances  however,  his  payment  will 
be  deemed  a  payment  and  redemption  of  the  tax,  and  a 
subsequent  applicant  will  not  be  entitled  to  a  deed31.  An 
invalid  decree  setting  aside  taxes  will  be  a  sufficient  excuse 
for  not  paying  the  taxes  set  aside,  and  will  be  treated  by  the 
court  as  equivalent  to  payment32.  As  to  what  certificates  or 
representations  constitute  a  payment,  see  §156,  supra.  The 
fact  that  two  different  persons  own  a  tract  assessed  and  sold 
as  one,  affords  no  grounds  for  setting  the  sale  aside.  Either 
owner  may  redeem  his  interest  any  time  before  May  1st, 
following  the  sale.  Thereafter,  he  must  redeem  the  entire 
tract33.  The  auditor  general  has  no  authority  to  issue  a 
certificate  of  error  on,  or  cancel  a  sale  of,  state  homestead 
lands.  His  authority  in  this  respect  is  confined  to  state  tax 
lands34.  While  the  decree  cannot  be  collaterally  attacked, 
except  for  want  of  jurisdiction  of  the  court,  the  original 
owner  may  defeat  an  action  based  upon  a  tax  deed  by  the 
production  of  this  certificate  of  error35.  The  auditor  gen- 


29.  Mann     v.      Carson,      120  33.     Kennedy  v.  Auditor  Gen- 
Mich.     631,     638;     Northrup     v.  eral,  134  Mich.  534. 

Maneka,  126  Mich.  550.  34.     State    Land    Commission- 

30.  Wilkin      v.      Keith,      121  er  v.  Auditor  General,  131  Mich. 
Mich.  66,  77.  147;   Jackson,   Lansing   &  S.    R. 

31.  Hoffman  v.  Auditor  Gen-  Co.    v.    Solomon    Lumber    Co., 
eral,  136  Mich.  689,  697.  146  Mich.  204. 

32.  Thomas    v.    Moore,    120  35.     See     "Ejectment,"     §419; 
Mich.   535.  "Collateral   attack,"   §453. 


557  FORECLOSURE  OF  TAX  LIEN  §  398 

eral  will  not  be  compelled  to  cancel  a  sale  where  a  portion  of 
the  land  was  not  locally  assessable,  but  the  owner  does  not 
offer  to  pay  any  portion  of  the  tax38. 

§398.     Setting  Aside  Sale.    By  the  Court. 

A  sale  may  be  set  aside  by  the  court  within  one  year  for 
the  reasons  specified  in  the  statute37.  All  objections  that 
might  be  made  prior  to  the  decree  are  foreclosed38.  And 
this  remedy  by  the  court  is  concurrent  with  remedy  provid- 
ing for  action  by  the  auditor  general89,  under  the  provision 
for  setting  aside  a  sale  because  the  taxes  were  paid.  The 
court  will  set  aside  a  deed  when  it  appears  that  the  owner 
was  prevented  from  paying  his  taxes  by  the  mistake,  fault  or 
wrong  of  the  collecting  officer,  as  where  the  township  treas- 
urer informed  the  owner  that  no  taxes  were  assessed  on  his 
premises40,  or  where  the  land  owner  relied  upon  an  invalid 
decree  setting  aside  the  taxes41.  Instead  of  a  bill  to  quiet 
title,  or  other  action  at  law,  an  application  should  be  made  to 
the  court  under  the  statute42.  On  a  petition,  a  decree  may 
be  shown  to  be  void,  and  set  aside,  because  the  amounts  were 
filled  in  after  the  record  passed  out  of  the  control  of  the 
court;  but  a  condition  may  be  imposed  that  all  taxes  and 

36.  Gd.    Rapids   I.    R.   Co.   v.      terms  as  shall  be  just. 
Auditor   General,   144   Mich.   77.          38.     See  Decree  §390;  Bloudin 

37.  C.  L.  83893,  570,  Act  206      v.   Griffin,  133   Mich.  647. 

of  Public  Acts  of  1893,  provides  39.  Kneeland  v.  Wood,  117 
that  no  sale  shall  be  set  aside  Mich.  174;  Wood  v.  Bigelow, 
after  confirmation,  except  in  115  Mich.  123. 
cases  where  the  taxes  were  40.  See  Payment,  §156;  Knee- 
paid,  or  the  property  was  land  v.  Wood,  117  Mich.  174; 
exempt  from  taxation.  In  such  Carpenter  v.  Jones,  117  Mich, 
cases  the  owner  of  such  lands  91. 

may    move    the    court    at    any  41.     Thomas    v.    Moore,    120 

time    within    one   year   after   he  Mich.  535. 

shall   have   notice   of  such   sale  42.     Kneeland  v.  Hyman,  118 

to  set  the  same  aside,  and  the  Mich.  56. 
court  may  so  order  upon   such 


§  399  THE  LAW  OF  TAXATION  558 

charges  and  interest  be  paid43.  After  confirmation,  the  court 
will  not  set  aside  a  sale  except  for  jurisdictional  defects,  or 
for  the  statutory  reason.  If  the  owner  permits  the  pro- 
ceedings to  proceed  to  a  decree,  the  question  whether  the 
taken  to  charge  the  land  after  the  assessment  became  res 
land  was  properly  assessed,  and  whether  proper  steps  were 
fudicata44.  Where  the  decree  is  entered  in  vacation,  with- 
out notice,  the  court  does  not  lose  jurisdiction;  but  the 
parties  in  interest  may  have  the  decree  opened  on  an  appli- 
cation seasonably  made45.  The  owner  must  file  his  petition 
within  one  year  after  he  has  received  notice  of  the  sale;  it 
is  immaterial  how,  or  from  whom  he  receives  such  notice46. 

§399.     Petition  to  Court.     Laches. 

Sound  public  policy  and  a  just  regard  for  the  stability  of 
private  rights  require  that  the  solemn  judgments  and  decrees 
of  courts,  affecting  the  rights  of  property,  shall  not  be  lightly 
disturbed,  nor,  without  the  strongest  reason,  allowed  to  be 
impeached  after  any  considerable  length  of  time,  during 
which  the  parties  have  been  allowed  to  rely  upon  them,  and 
others  may  have  obtained  interests  on  the  faith  of  them, 
or  the  evidence  by  which  they  might  have  been  sustained 
has  been  lost.  And  if  a  party  to  such  judgment  or  decree 
might,  after  any  considerable  period,  impeach  its  validity 
without  showing  a  proper  excuse  or  reasonable  justification 
for  the  delay,  a  general  feeling  of  insecurity  and  distrust, 

43.  Morgan   v.   Tweddle,    119  45.     See       §391:        Keho       v. 
Mich.  350;  First  Baptist  Church  Auditor  General,  138  Mich.  586; 
v.  Roberts,  120  Mich.  704;  Jen-  Muirhead    v.    Sands,    111    Mich, 
kinson   v.   Auditor   General,   104  495;   Smith   v.   Auditor   General, 
Mich.  35;  McGinley  v.  Calumet,  139    Mich.    582. 

etc.,   Mining   Co.,   121    Mich.   88.          46.     Hoffman    v.    Flint    Land 

44.  Mann      v.      Carson,      120      Co.,  144  Mich.  564. 
Mich.    631,    638. 


FORECLOSURE  OF  TAX  LIEN 


{(Ml 


very  injurious  to  property  and  to  business,  must  result.  This 
principle  applies  to  petitions  filed  more  than  one  year  after 
knowledge  of  the  sale47.  See  page  558.  While  the  owner 
is  barred  from  bringing  his  petition  based  upon  the  statutory 
reasons,  unless  he  brings  it  within  the  statutory  period,  he  is 
not  barred  from  bringing  his  petition  after  more  than  a  year 
has  elapsed,  based  upon  jurisdictional  defects,  if  he  uses  dili- 
gence in  so  doing;  but  any  delay  must  be  clearly  explained 
or  he  will  have  lost  his  right  by  laches48.  Where  the  peti- 
tioner has  used  due  diligence,  and  filed  his  petition,  based 
upon  jurisdictional  defects,  as  soon  as  he  could  after  dis- 
covering the  facts,  the  decree  will  be  vacated49. 

$400.     Bill  of  Review. 

Substantially  the  same  rules  apply  to  a  bill  of  review  to 
set  aside  a  decree  of  sale,  as  to  a  petition.  It  will  not  lie 
to  set  aside  a  tax  sale  after  a  confirmation  of  the  sale,  unless 


47.  Haywarcl     v.     O'Connor, 
145  Mich.  52. 

48.  Cook   v.   Hall,  123    Mich. 
378,     384;     Owens     v.     Auditor 
General,  147  Mich.  683,  holding 
that  a  delay  of  12  years  is  fatal. 
Hall    v.    Miller,    150    Mich.    300, 
holding    that    a    delay    of    two 
years,    after    notice    was    fatal. 
A    delay   of    seven    years,    after 
knowledge  of  the  sale,  is  fatal; 
McFarlan   v.   Simpson,   153   Mich. 
193. 

49.  Aztec      Copper      Co.      v. 
Auditor  General,  128  Mich.  615, 
618;    Benedict    v.    Auditor    Gen- 
eral. 104  Mich.  271;  Spaulding  v. 
O'Connor,     119     Mich.     45,     48. 
where     the    petition    was     filed 
three    years    after    the    decree. 
McGinley  v.   Calumet,  etc.,  Co., 
121    Mich.    88,    where    the    time 
must    have    been     three    years. 
Thomas  v.  Auditor  General,  120 


Mich.  535.  In  Bending  v. 
Auditor  General,  137  Mich.  500, 
it  is  that  a  decree  will  not  be 
set  aside,  even  for  jurisdictional 
defects,  after  an  unexplained 
delay  of  nearly  five  years  where 
the  rights  of  third  parties  had 
intervened,  but  that  the  parties 
would  be  left  to  an  original 
action  to  determine  their  rights. 
In  Horton  v.  Sailing,  15  t^.  X. 
1114,  Mich.  ,  the  com- 

plainant, a  stranger  to  the  title, 
did  not  discover  that  a  certain 
tax  sale  was  void  for  twelve 
years  after  the  deed  had  been 
issued.  He  then  filed  a  bill  to 
compel  the  cancelling  of  the 
deed  in  question,  and  to  com- 
pel the  Auditor  General  to  sell 
the  land  to  him.  Held,  that  he 
w.i*  not  estopped  from  so 
doing. 


§  401  THE  LAW  OF  TAXATION  560 

a  total  want  of  jurisdiction  to  make  the  sale  is  shown,  or 
one  of  the  two  causes  mentioned  in  the  statute  exists;  and 
the  hearing  must  be  confined  to  these  causes.  To  say  that 
allowing  a  bill  of  review  to  be  filed  for  one  of  the  causes 
mentioned  in  the  statute  opens  the  inquiry  the  same  as 
though  it  were  an  original  hearing  in  the  tax  proceeding, 
is  to  render  the  provisions  of  the  statute  nugatory.  The 
legislature  evidently  proceeded  upon  the  theory  that  all  prop- 
erty liable  to  taxation  should  pay  its  proportion  of  taxes; 
that  it  was  the  duty  of  the  owner,  and  of  all  persons  having 
an  interest  therein,  as  mortgagees  or  otherwise,  to  see  that 
the  taxes  were  paid.  If  there  were  irregularities,  simply, 
which  did  not  go  to  the  question  of  whether  the  property 
was  exempt  from  taxation,  or  whether  the  tax  had  been 
paid,  or  to  the  jurisdiction  of  the  court,  the  irregularities 
must  be  shown  at  the  hearing  upon  the  petition  of  the  audi- 
tor general  before  the  tax  decree.  If  this  was  not  attended 
to,  and  the  sale  was  afterwards  made  and  confirmed,  the 
sale  could  be  set  aside  only  when  it  was  shown  either  that 
the  tax  had  been  paid,  or  the  land  was  exempt  from  taxa- 
tion, or,  that  the  lands  belonged  to  infants  or  other  incom- 
petents50. Where  a  bill  of  review  is  dismissed,  the  lower 
court  should  award  costs51.  A  bill  of  review  should  be  filed 
seasonably.  Where  petitioner  waited  for  four  years  after 
he  knew  of  the  sale,  his  application  will  be  denied,  although 
if  made  seasonably,  there  were  good  grounds  for  setting 
the  decree  aside52. 

§401.     Writs  of  Assistance. 

The  statute  provides  for  the  issuing  of  these  writs  to  put 
as  purchaser  in  possession.    This  proceeding  is  not  a  trial  of 

50.  Berkey   v.    Burchard,   119      Mich.  625. 

Mich.  101,  104.  52.     Brown     v.     Nopper,     143 

51.  Phelps   v.    O'Connor,   137      Mich.  636;  see  §399,  supra. 


561  FORECLOSURE  OF  TAX  LJEN  j  4<)1 

the  respondents  rights  of  possession,  or  of  his  title  to  the 
premises.  These  questions  were  involved  in  the  issue  upon 
the  auditor  general's  petition.  Upon  the  filing  of  the  petition 
for  the  writ  of  assistance,  the  inquiries  are : 

First.  Whether  the  court  had  jurisdiction  to  render  the 
decree. 

Second.  Whether  all  of  the  steps  required  by  statute  have 
been  taken  in  making  the  sale,  filing  the  report  of  sale,  etc. 

Third.    Whether  the  time  for  redemption  has  expired. 

These  are  the  questions  which  may  be  determined  by  the 
chancery  court  in  the  tax  proceedings.  The  provision  of 
the  statute  for  the  issuance  of  a  writ  of  assistance  is  the 
means  provided  by  the  legislature  to  enable  the  court  to 
carry  its  decree  into  execution.  The  calling  of  a  jury  to 
determine  questions  arising  under  this  application  would 
be  but  idle  ceremony.  Where  the  court  of  chancery  has 
power  to  decree,  it  has  power  to  carry  its  decree  into  effec- 
tual execution.  In  cases  of  mortgage  foreclosures,  it  is  the 
general  rule  that  the  purchaser  of  the  land  sold  under  the 
decree  is  entitled  to  be  put  into  possession  by  the  court  en- 
tering the  decree.  To  transfer  the  title  and  leave  the  pur- 
chaser to  another  suit  to  obtain  possession  from  a  party 
whose  rights  have  been  fully  decided  by  the  court,  would 
be  useless  and  circuitous  vexation.  The  object  of  a  writ  of 
assistance  is  to  compel  parties  who  are  bound  by  a  decree 
in  foreclosure  to  give  up  the  possession  which  the  decree 
and  sale  under  it  estop  them  from  further  asserting.  And 
any  matter  set  up  in  defense  to  a  motion  for  a  writ  of  assist- 
ance cannot  be  received  to  affect  the  decree  determining 
defendants  rights  unless  the  matter  goes  to  the  jurisdiction 
of  the  court  in  rendering  the  decree.  There  is  no  distinc- 
tion between  a  decree  rendered  in  the  foreclosure  of  a  mort- 
gage and  the  decree  in  a  tax  proceeding,  so  far  as  these 

(86) 


§  401  THE  LAW  OF  TAXATION  562 

questions  are  concerned.  One  deprives  the  party  of  title 
and  right  to  possession  the  same  as  the  other;  and  the  rules 
for  the  enforcement  of  a  decree  in  foreclosure  proceedings 
are  applicable  to  the  enforcement  of  a  decree  in  a  tax  pro- 
ceeding. The  respondent  has  had  his  day  in  court  under 
this  equitable  proceeding.  It  is  not  unconstitutional  be- 
cause of  a  lack  of  trial  by  jury.  It  is  a  proceeding  in  equity 
instituted  by  the  state  to  enforce  against  a  parcel  of  land  a 
lien  which  it  claims  for  taxes,  and  a  different  proceeding 
altogether  from  any  which  was  known  to  our  jurisprudence 
in  1850.  It  is  a  new  proceeding,  and  therefore,  if  jury 
trial  cannot  be  had  in  it,  that  method  of  trial  is  not  cut  off, 
but  is  simply  not  given.  There  is  nothing  in  the  constitution 
which  renders  it  necessary  to  provide  for  jury  trial  in  new 
cases.  The  constitutional  provision  is,  "The  right  of  trial 
by  jury  shall  remain,"  by  which  we  are  to  understand  merely 
that  it  is  retained  for  the  cases  in  which  it  existed  before. 
It  is  often  said  that  a  court  of  chancery  is  not  a  proper 
tribunal  for  the  trial  of  titles  to  land,  which  is  an  erroneous 
impression.  If  it  were  the  fact,  however,  it  would  be  im- 
material in  these  cases  because  in  them  titles  are  not  tried 
or  disputed54.  It  would  seem  that  the  auditor  general  be 
made  a  party  to  this  proceedings  so  that  if  the  writ  is  re- 
fused, he  may  be  compelled  to  refund  the  purchase  price. 
If  he  is  not  made  a  party,  the  state  cannot  be  compelled  to 

54.     Act     No.     97     of     Public  assistance    may   issue   for    such 

Acts    of    1897;     Ball    v.    Ridge  last      mentioned      lands.       The 

Copper     Co.,     118     Mich.     7,     13 ;  provisions     relative     to     giving 

Hooker   y.    Bond,    118   Mich.   255.  notice    of   purchase   at    tax    sale 

The   giving  of  a  notice  of  pur-  does    not    apply    to    any    lands 

chase  of  delinquent  tax  lands  is  sold,    or    bid    in    to    the    state, 

not  required  in  the  case  of  pur-  prior  to  the  29th  day  of  August, 

chase  of  state  homestead  lands;  1897,      see      C.      L.      §3959,      as 

and     if     necessary,     a    writ    of  amended  in  1899,  tax  law,  §140. 


563  FORECLOSURE  OF  TAX  LIEN  §  401 

reimburse  the  defeated  purchaser,  if  the  writ  is  not  allowed55. 
Upon  a  petition  for  this  writ  the  court  will  not  determine 
the  legality  of  tax  sales  subsequent  to  the  tax  decree  upon 
which  the  petition  is  based.  In  such  a  case,  no  writ 
will  issue  but  all  parties  will  be  left  to  their  remedies5*. 

Statutory  Provisions. 

C.  L.  §3895,  Tax  Law,  §72  provides  that  the  court 
may,  on  application,  put  the  purchaser  of  state  tax  lands 
in  possession  of  the  premises  by  a  writ  of  assistance. 

C.  L.  §3958,  Tax  Law,  §137,  provides:  "The  cir- 
cuit court  may,  on  application,  put  the  purchaser  of  any 
lands  sold  under  the  provisions  of  this  act  in  possession 
of  the  premises  by  writs  of  asistance." 

The  statute  does  not  apply  to  tax  sales  made  before  this 
statute  took  effect,  although  the  deed  may  not  have  been 
issued  until  after  the  act  was  in  force  in  1897.  The  time  of 
the  application  for  the  purchase  and  payment  of  the  money 
governs  in  this  respect67.  Where  the  purchaser  obtained  a 
deed  prior  to  the  taking  effect  of  this  act,  but  all  taxes  a  lien 
upon  the  premises  were  not  paid,  the  purchase,  if  deemed  a 
valid  purchase  at  all,  will  not  be  considered  as  made  until 
such  taxes  were  paid,  and  consequently  the  purchase  would 
be  within  the  provisions  of  this  act  if  such  taxes  were  paid 
after  the  act  took  effect58.  The  title  of  this  act  is  not  broad 
enough  to  make  it  a  general  period  of  limitations,  where  the 

55.  Ball  v.  Ridge  Copper  Co..          57.     Flint    Land    Co.    v.    Gd. 
118  Mich.  7,  15;  State  Tax  Land      Rapids  Terminal  Ry.,  147  Mich. 
Cases,    54    Mich.    367,    quoting      627. 

Judge  Cooley;  Beck  v.  Finn,  122  58.     Pierpont    v.    Osmun.    118 

Mich.  21.  Mich.    472;    Eldridge    v.    Rich- 

56.  Newton    v.    Auditor    Gen-  mond,  120  Mich.  586. 
eral,  131  Mich.  547. 


§  402  THE  LAW  OF  TAXATION  564 

sale  is  void,  in  providing  that  all  persons  failing  to  redeem 
within  six  months  shall  be  barred  thereafter59. 

§402.     Writs  of  Assistance.     Notice. 

The  notice  required  by  Act  229  is  one  of  favor  to  the  land 
owner,  by  which  he  is  permitted  to  still  save  his'  land.  It  is 
not  a  harsh  proceeding  and  should  not  be  subject  to  the  same 
strict  rules  which  are  made  to  govern  proceedings  by  attach- 
ment and  drain  proceedings.  It  is  not  a  notice  required  in 
the  course  of  proceedings  to  divest  the  owner  of  his  title. 
It  is  a  favor  granted  him  after  he  has  lost  title  by  which  it 
may  be  restricted60.  Whether  the  notice  served  was  a  copy 
or  an  original,  is  of  no  significance61.  The  statute  does  not 
require  the  service  of  evidence  of  the  sale  or  confirmation62. 
The  fact  that  the  notice  does  not  exempt  the  right  of  way 
of  a  railroad  company  over  the  premises,  does  not  invalidate 
the  notice63.  If  the  notice  only  describe  the  land,  giving  the 
township  and  range,  but  omits  the  name  of  the  state,  it  is 
fatally  defective64.  The  statute  requiring  the  service  of  no- 
tice, first  passed  in  1897,  Act  227,  has  no  application  to  lands 
purchased  prior  to  Aug.  27,  1897.  The  right  of  possession, 
in  cases  arising  from  sales  made  prior  to  such  date,  must  be 
determined  in  an  original  proceeding65.  The  land  owner 
has  six  months  after  the  filing  with  the  county  clerk  of  proofs 
of  the  required  service  of  notice  upon  him  in  which  to  re- 

59.  Church     v.      Smith,     121  63.     Flint     Land     Co.     Lt.     v. 
Mich.  97.  Godkin,  136  Mich.  668. 

60.  §143  of  Tax  Law  of  1893,  64.     Tucker    v.    Van    Winkle, 
C.    L.    §3902;    Citizens    Savings  142    Mich.    210;    Sanborn    Co.   v. 
Bank    v.    Auditor    General,    123  Alston,  15  L.  N.  531.  and  an  en- 
Mich.  511.  dorsement    on   the    back   of   the 

61.  Richardson    Lumber    Co.  notice  will  not  heal  it;  Curry  v. 
v.  Jasspon,  145  Mich.  8.  Larke,  153  Mich.  348. 

62.  Bradley    v.    Williams,    11  65.     Briggs     v.      Guleck,     143 
L.  N.  818,  139  Mich.  230.  Mich.  457. 


:.<;;,  FORECLOSURE  OF  TAX  LIEN 

deem.  §§140,  141,  of  the  Tax  Law,  C  L.  §§3959,  3960  are 
contemporaneous,  and  must  be  constructed  together,  as 
statutes  providing  for  redemption  are  construed  literally66. 
An  entry  of  land  under  a  tax  title,  without  giving  the  statu- 
tory notice,  is  not  even  an  entry  under  color  of  right,  but 
is  a  trespass.  A  person  so  entering  cannot  recover  the  pur- 
chase price  he  paid,  nor  compensation  for  his  improve- 
ments67. The  acceptance  in  writing,  of  an  offer  to  com- 
promise a  tax  claim,  avoids  a  tax  deed.  Such  an  agreement 
may  be  set  up  in  defense  to  the  suing  out  of  a  writ  of  as- 
sistance68. Leaving  out  a  decimal  point  whereby  the  num- 
ber of  acres  in  a  plat  is  wrongly  stated  is  not  fatal  when  the 
plat  is  correctly  named.  The  amount  that  was  paid  for 
each  description  that  was  sold  separately,  must  be  stated89. 
The  notice  is  sufficient  if  it  specify  the  total  amount  paid, 
without  specifying  the  years  for  which  the  land  was  sold, 
but  where  one  owner  owes  several  parcels,  the  notice  should 
specify  the  amount  paid  for  each  parcel70.  This  decision, 
however,  seems  to  be  modified  to  the  extent  that  where  sev- 
eral parcels  are  sold,  the  notice  must  show  the  amount  paid 
for  each  description  each  year;  and  this  would  seem  to  be 
true  in  the  case  of  a  simple  description71.  When  the  same 

66.  See   9215,   supra;    Pike  v.  68.     Briggs  v.   Boardman,  135 
Richardson,   136   Mich.   414.  Mich.  329. 

67.  Corrigan  v.  Hinckley,  125  69.     Jackson     v.     Mason,     143 
Mich.   125;   Huron  Land  Co.  v.  Mich.  355. 

Robarge,  128  Mich.  686;  Holmes  70.  John  Duncan  Land  & 
v.  Loud,  149  Mich.  410,  where  Mining  Co.  v.  Rusch,  145  Mich, 
defendant  entered  the  premises  1;  Jackson  v.  Mason,  143  Mich, 
before  the  six  months  had  355.  In  Sanborn  Co.  v.  John- 
expired.  Cook  Land  Co.,  etc.  v.  son,  148  Mich.  405,  it  is  held 
McDonald,  15  L.  N.  953,  that  the  court  does  not  acquire 
Mich.  :Fitschen  v.  Olsen,  jurisdiction  to  issue  a  writ  of 
15  L.  N.  1010,  Mich.  ,  assistance  upon  a  petition  based 
where  defendant  served  the  upon  a  defective  notice, 
notice  before  the  deed  was  71.  Hayden  v.  Closser,  153 
issued.  Mich.  182. 


§  402  THE  LAW  OF  TAXATION  56*6 

description  of  land  is  sold  for  several  years  with  other  lands, 
the  notice  must  show  the  amount  of  his  description  for  the 
entire  pieces  covered  by  the  notice72. 

Statutory  Provision. 

C.  L.  §3959,  as  amended  by  Act  129  of  Public  Acts 
of  1909,  Tax  Law,  §§  140,  141,  provides :  "No  writ 
of  assistance  or  other  process  for  the  possession  of  any 
land,  the  title  to  which  has  been  obtained  under  and  in 
pursuance  of  any  tax  sale  made  after  the  twenty-ninth 
day  of  August,  in  the  year  of  our  Lord  eighteen  hun- 
dred ninety-seven;  or  of  any  sale  of  state  tax  lands  or 
state  bids  made  after  the  said  twenty-ninth  day  of 
August,  eighteen  ninety-seven,  except  where  such  title 
shall  be  obtained  under  the  provisions  of  section  one 
hundred  thirty-one  of  this  act,  shall  be  issued  until 
six  months  after  there  shall  have  been  filed  with  the 
county  clerk  of  the  county  where  the  land  is  situated, 
a  return  by  the  sheriff  of  said  county  showing  that 
he  has  made  personal  service  of  a  notice,  or  proof  of 
substituted  service  thereof,  as  hereinafter  provided, 
upon  the  person  or  persons  appearing  by  the  records 
in  the  office  of  the  register  of  deeds  of  said  county  to 
be  the  last  grantee  or  grantees  in  the  regular  chain  of 
title  of  such  lands,  or  of  any  interest  therein,  at  the 
date  of  the  delivery  of  such  notice  to  the  sheriff  for 
service,  and  upon  the  person  or  persons,  if  any  there 
be,  in  the  actual  open  possession  of  such  lands  at  the 
date  aforesaid,  and  upon  the  grantee  or  grantees  under 
the  tax  deed  issued  by  the  auditor  general  for  the  latest 
year's  taxes  then  appearing  of  record  in  said  registry 
of  deeds,  and  upon  the  mortgagee  or  mortgagees  named 
in  all  undischarged  recorded  mortgages  or  any  assignee 

72.     Hayden     v.     Closser,     15       L.  N.  618  Mich. 


567  FORECLOSURE  OF  TAX  LIEN  §  402 

or  assignees  thereof  of  record  at  the  date  aforesaid, 
and  upon  the  holder  of  record  of  all  undischarged 
recorded  liens,  which  shall  be  substantially  in  the  fol- 
lowing form : 

To  the  oumer  or  oivners  of  any  and  all  interests  in, 
or  liens  upon  the  land  herein  described: 

Take  notice,  that  sale  has  been  lawfully  made  of  the 
follounng  described  land  for  unpaid  taxes  thereon,  mid 
that  the  undersigned  has  title  thereto  under  tax  deed 
or  deeds  issued  therefor,  and  that  you  are  entitled  to 
a  reconveyance  thereof,  at  any  time  liithin  six  months 
after  return  of  Service  of  this  notice,  upon  payment  to 
the  undersigned  or  to  the  register  in  chancery  of  the 
county  in  which  the  lands  lie  of  all  stuns  paid  upon 
'  such  purchase,  together  tvith  one  hundred  per  centum 
additional  thereto,  and  the  fees  of  the  sheriff  for  the 
sennce  or  cost  of  publication  of  this  notice,  to  be  com- 
puted as  upon  personal  service  of  a  declaration  as  com- 
mencement of  suit,  and  the  further  sum  of  five  dollars 
for  each  description  without  other  additional  cost  or 
charges.  If  payment  as  aforesaid  is  not  made,  the 
undersigned  ivill  institute  proceedings  for  possession 
of  the  land. 

Description   Amount  paid 

taxes  for  I 

(Signed)   

Place  of  business 

"Provided,  That  if  the  grantee  or  grantees,  or  the 
person  or  persons  holding  the  interest  in  said  lands  as 
aforesaid,  shall  be  residents  of  any  county  of  the  state 
other  than  the  county  in  which  the  land  is  situated, 
then  such  return  as  to  such  person  shall  be  made  by 


§  402  THE  LAW  OF  TAXATION  568 

the  sheriff  of  the  county  where  such  person  or  persons 
reside  or  may  be  found :  Provided  further,  That  if  the 
person  or  persons  entitled  to  such  notice,  or  any  of 
them,  shall  be  non-residents  of  this  state,  if  from  the 
said  record  aforesaid,  or  from  inquiry,  the  sheriff  can 
obtain  the  postoffice  address  of  such  person  or  persons 
or  if  said  addresses  be  known  to  him,  he  shall  either 
send  to  such  non-resident  person  or  persons  a  copy  of 
said  notice  by  registered  letter,  and  return  the  receipt 
or  receipts  of  the  postmaster  received  for  said  letter 
or  letters  with  his  return  to  the  county  clerk's  office, 
or  said  sheriff  shall  cause  to  be  served  personally  on 
such  person  or  persons  aforesaid  a  copy  of  the  said 
notice,  and  whenever  such  notice  shall  be  personally 
served  outside  of  this  state  proof  of  such  service  shall 
be  made  by  the  affidavit  of  the  person  who  shall  serve 
the  same,  made  before  a  justice  of  the  peace  or  notary 
public  and  when  such  affidavit  shall  !«  made  outside 
this  state,  it  shall  have  attached  thereto  the  certificate  of 
the  clerk  of  the  court  of  record,  certifying  to  the  official 
character  of  the  justice  or  notary,  and  the  genuineness 
of  his  signature  to  the  jurat  of  the  affidavit,  and  such 
sheriff  shall  return  the  said  proof  of  personal  service 
with  his  return  to  the  county  clerk's  office:  Provided 
further,  That  if  any  person  entitled  to  notice  as  here- 
inbefore provided  is  dead,  or  if  his  estate  shall  be  under 
control  of  a  trustee  or  guardian,  then  and  in  such  case 
notice  as  hereinbefore  provided  may  be  served  upon 
the  exeuctor  or  administrator  of  said  deceased  per- 
son, or  upon  his  heirs,  if  there  be  no  executor  or  ad- 
ministrator, or  upon  the  trustee  or  guardian  of  any 
incompetent  person,  with  like  effect  as  if  served  upon 
the  grantee,  mortgagee  or  assignee :  Provided  further, 


569  FORECLOSURE  OF  TAX  LIEN 


That  if  the  sheriff  of  the  county  where  any  such  lands 
are  located  shall  make  a  return  that  after  careful  in- 
quiry he  is  unable  to  ascertain  the  whereabouts  or  the 
postoffice  address  of  the  persons  upon  whom  notice 
may  be  served  as  aforesaid,  or  any  of  them,  then  such 
notice  as  is  herein  provided  for  shall  be  published  for 
four  successive  weeks,  which  shall  be  construed  to 
mean  four  publications  once  each  week,  in  some  news- 
paper published  and  circulating  in  the  county  where 
such  lands  are  located,  if  there  is  one;  and  if  no  such 
paper  is  published  in  such  county  then  publication  shall 
be  made  in  some  newspaper  published  and  circulated 
in  an  adjoining  county,  and  due  proof  of  publication, 
by  affidavit  of  the  printer  or  publisher  of  such  news* 
paper,  shall  be  filed  with  the  county  clerk  and  shall  be 
in  lieu  of  personal  service  upon  the  person  or  persons 
whose  whereabouts  or  postoffice  address  cannot  be 
ascertained  as  aforesaid  :  Provided  further,  That  such 
service  may  be  made  upon  any  resident  of  this  state 
by  leaving  such  notice  at  his  usual  place  of  residence 
with  some  member  of  his  family  of  mature  age,  and 
upon  any  non-resident  of  this  state  by  delivering  such 
notice  to  him  personally  in  any  county  of  this  state 
where  he  may  be  found,  and  return  thereof  shall  be 
made  by  the  sheriff  of  such  county.  Service  in  all 
cases  and  return  thereof  may  be  made  by  the  under 
sheriff  or  any  deputy  sheriff  with  like  effect  as  if  made 
by  the  sheriff.  Corporations  formed  under  the  laws  of 
this  state  shall  be  regarded,  for  the  purposes  of  this 
act,  as  residents  of  the  county  in  this  state  where  their 
office  for  the  transaction  of  business  therein  is,  by  their 
articles,  located,  and  service  on  such  corporations  may 
be  made  on  the  president,  secretary,  treasurer  or  gen- 


§  402  THE  LAW  OF  TAXATION  570 

eral  agent  of  such  corporation,  or  by  leaving  such 
notice  at  the  office  of  such  corporation  with  some  per- 
son in  charge  of  such  office.  If  the  sheriff  of  any 
county  in  this  state  in  which  the  office  of  any  such  cor- 
poration for  the  transaction  of  business  is,  by  its  arti 
cles,  fixed,  shall  return  that  upon  careful  inquiry  he 
has  been  unable  to  find  any  such  office  or  any  president, 
secretary,  treasurer  or  general  agent  of  such  corpora- 
tion in  such  county,  service  of  such  notice  may  be  made 
upon  such  corporation  by  publication  as  hereinbefore 
provided  in  case  of  persons  whose  whereabouts  or 
postoffice  address  cannot  be  ascertained;  and  this  pro- 
vision shall  apply  as  well  to  corporations  whose  term 
of  corporate  existence  has  expired  as  to  those  whose 
term  of  existence  has  not  expired.  Foreign  corpora- 
tions doing  business  in  this  state  and  having  an  agent 
therein  appointed  to  accept  service  of  process  as  re- 
quired or  as  may  be  required  by  the  laws  of  this  state, 
shall  be  regarded,  for  the  purposes  of  this  act,  as  resi- 
dents of  the  county  where  such  agent  resides,  and  ser- 
vice on  such  corporations  may  be  made  on  such  agent, 
or  by  registered  letter  addressed  to  such  corporations 
at  their  home  office.  The  sheriff  shall,  in  his  return, 
state  the  time  when  such  notice  was  delivered  to  him 
for  service,  and  his  return  shall  be  prima  facie  evidence 
of  the  facts  therein  stated. 

"Section  141.  Any  person  having  any  estate  in  such 
lands  or  any  interest  therein,  either  in  fee,  for  life  or  for 
years,  or  any  mortgagee  thereof  or  assignee  of  any  un- 
discharged mortgage  thereon,  or  the  holder  of  any  lien 
thereon,  or  any  executor,  administrator,  trustee  or 
guardian  of  such  persons,  or  any  of  them,  or  any  per- 
son in  the  actual  possession  of  such  lands  at  the  time  of 


571  FORECLOSURE  OF  TAX  LIEN  §  402 

such  tax  purchase,  shall  be  entitled  to  receive  from  the 
person  so  claiming  under  and  by  virtue  of  such  tax 
deed,  his  heirs  or  assigns  at  any  time  within  six  months 
after  the  filing  of  return  of  service  or  the  filing  of  proof 
of  publication  of  such  notice,  as  hereinbefore  provided, 
a  release  and  quit  claim  of  all  right  and  interest  in  such 
land  acquired  under  such  tax  deed  or  deeds,  upon  pay- 
ment to  him  or  them,  or  to  the  register  in  chancery  of 
the  county  in  which  the  lands  are  located,  of  the  amount 
paid  upon  such  purchase,  together  with  one  hundred 
per  centum  in  addition  thereto,  and  the  lawful  fees  of 
such  personal  or  substituted  service,  which  fee  shall  be 
the  same  as  provided  by  law  for  service  of  subpoenas 
or  for  orders  of  publication  or  the  cost  of  such  service 
by  registered  mail,  and  the  further  sum  of  five  dollars 
for  each  description,  without  additional  cost  or  charge : 
Provided,  That  any  person  or  persons  entitled  to  a  re- 
lease and  quit  claim  under  the  foregoing  provisions  of 
this  section,  at  any  time  after  the  issue  of  tax  ,deeds 
on  such  lands,  or  after  the  purchaser  thereof  shall  be 
entitled  to  such  tax,  deeds,  and  before  service  or  return 
thereof  as  herein  provided,  shall  have  the  right  to  re- 
deem such  lands  from  such  sale,  by  paying  to  theipur- 
chaser,  or  his  grantee,  or  to  the  register  in  chancery 
of  the  county  ity  which  the  lands  lie,  on  the  certificate 
of  the  auditor  general  or  his  deputy,  all  sums  paid  as 
a  condition  of  such  purchase,  together  with  one  hun- 
dred 'per  centum  additional  thereto,  and  the  further 
sum  of  five  dollars  for  each  description.  By  such  pay- 
ment the  tax  title  and  any  and  all  such  certificates  of 
sale  shall  become  void  and  of  no  effect  against  the  lands 
to  be  redeemed.  The  register  in  chancery,  shall  when- 
ever payment  is  made  to  him  as  provided  in  this  sec- 


§  402  THE  LAW  OF  TAXATION  572 

tion,  at  once  notify  the  owner  of  the  tax  title,  or  of 
any  and  all  such  certificates  of  sale,  of  the  payment  so 
made,  and  the  owner  of  the  tax  title,  or  of  any  such 
certificates  of  sale,  shall  forthwith  deliver  to  said 
register  a  release  and  quit 'claim  of  all  rights  acquired 
by  him  under  said  tax  purchase,  running  to  the  persxm 
making  such  payment,  and  shall  also  deliver  to  said 
register,,  the  tax  deed,  certificates  of  purchase,  tax  re- 
ceipts, and  all  other  conveyances  relating  to  said  tax 
title  or  tax  interest  before  he  shall  be  entitled  to  receive 
the  money  paid  to  said  register  as  herein  provided. 
Upon  delivery  of  such  release  and  quit  claim,  and  of 
such  certificates  of  purchase  and  tax  receipts,  the  regis- 
ter in  chancery  shall  at  once  pay  over  to  the  owner  of 
the  tax  title  all  sums  received  by  him  for  the  redemption 
of  the  lands  therein  described :  Provided  further,  That 
no  quit  claim  or  reconveyance  made  under  the  provi- 
sions of  this  section  shall  be  construed  to  vest  in  the 
grantee  any  title  or  interest  in  such  lands  beyond  that 
already  owned  by  him,  but  such  grantee  shall  be  en- 
titled to  a  lien  on  such  lands,  or  on  such  parts  thereof 
or  interests  therein  as  are  not  owned  by  him,  for  the 
amount  paid,  or  such  portion  thereof  as  is  lawfully 
chargeable  to  such  parts  or  interests,  in  addition  to  the 
lien  or  other  interest  before  held  by  such  grantee; 
which  lien  may  be  enforced  in  any  court  of  competent 
jurisdiction  as  in  other  cases  of  liens  upon  lands,  with 
interest  therein  at  the  rate  of  six  per  centum  per  annum 
from  the  date  of  such  payment.  The  circuit  courts  in 
chancery  shall  have  jurisdiction  to  enforce  the  liens 
herein  provided  for  without  regard  to  the  amount  of 
such  liens:  Provided  further,  That  any  such  applica- 
tion for  a  writ  of  assistance  shall  show  that  such  appli- 


573  FORECLOSURE  OF  TAX  LIEN  .  §  403 

cant  had  complied  with  the  provisions  of  this  act  as  to 
the  giving  of  notice,  as  herein  directed,  and  he  shall 
attach  to  such  application  a  copy  of  the  notice  afore- 
said, and  the  return  of  the  sheriff  serving  the  same,  or 
a  copy  of  the  proof  of  publication,  or  the  registry 
receipt  or  receipts  from  the  registry  department  of  the 
postoffice  showing  that  such  notice  has  been  served  by 
registered  mail." 

£403.     Writs  of  Assistance.    Service  and  Return  of  Notice. 

A  person  who  buys  delinquent  tax  lands  of  the  auditor 
general  is  not  invested  with  all  of  the  rights  of  the  land 
owner,  nor  are  adverse  titles  and  interests  in  the  land  extin- 
guished until  the  owners  of  such  titles  and  interests  are 
afforded,  by  the  act  of  the  tax  title  holder,  opportunity  to 
pay  the  taxes,  and  a  penalty,  and  obtain  a  reconveyance.  A 
short  period  of  limitation  is  established,  which  begins  to  run 
upon  the  giving  of  the  statutory  notice  antf  the  filing  of  the 
proof  of  service  with  the  county  clerk.  The  essential  idea 
of  the  legislation  is,  opportunity  for  the  delinquent  tax  payer. 
The  period  of  opportunity  begins  with  the  service  of  notice 
and  runs  until  such  time  as  the  tax  title  holder  has  brought 
himself  within  the  statutory  conditions  for  taking  action. 
The  court  will  not  construe  the  legislation  so  as  to  make  its 
provisions  mandatory  and  so  applicable  only  to  cases  where 
the  returns  of  service  show  exact  conformity  with  the 
statutory  provisions.  A  return  showing  the  fact  of  service, 
may  be  shown  to  be  false,  and  actual  proper  service  may  be 
shown  when  the  return  does  not  recite  that  fact.  The  fact 
of  proper  service  is,  notwithstanding  the  return,  matter  to 
be  proved,  the  actual  filing  of  the  return  fixing  the  date  from 
which  the  period  of  limitation  begins  to  run.  It  is  not  essen- 
tial that  the  return  show  that  the  parties  were  residents  of 


§  403  THE  LAW  OF  TAXATION  574 

the  counties  in  which  service  was  made,  nor  fatal  because 
copies  of  the  notice,  instead  of  originals,  were  served;  nor 
need  the  return  or  notice  show  the  authority  of  the  person 
signing  them  nor  need  the  amount  of  taxes  for  each  year 
be  given  separately,  nor  need  it  state  that  the  persons  named 
or  served  were  the  last  recorded  grantees  of  the  property, 
or  mortgagees.  The  fact  that  the  notices  do  not  state  the 
proper  or  correct  interest  of  the  parties,  or  are  misdirected 
as  to  parties,  is  immaterial73.  The  notice  is  good  though 
it  may  not  correctly  state  the  interest  of  the  owner  because 
the  law  was  intended  to  prevent  land  owners  from  losing 
their  property  through  ignorance  or  forgetfulness  of  the  fact 
of  the  sale  of  the  land  for  taxes ;  and  it  is  sufficient  to  inform 
the  owner  or  persons  in  interest  that  the  land  has  been  sold74. 
The  tax  title  holder  must  make  every  honest  effort  to  serve 
the  notice  upon  the  owner  of  the  premises  purchased.  Any 
effort  to  avoid  a  proper  service  through  fraud  or  collusion, 
or  an  intentional  omission  to  comply  with  the  spirit  of  the 
statute,  will  not  be  effective.  If  the  tax  title  holder  knows 
where  the  owner  of  the  land  lives,  the  notice  should  be  sent 
there  and  resort  not  had  to  publication.  The  return  of  the 
sheriff  is  not  conclusive  as  to  the  facts  he  returns,  but  they 
may  be  controverted75.  Among  others,  the  statute  requires 

73.     C.    L.    §3959,    see    §§198,  assistance   must   show   that   this 

222,   supra.    Williams   v.   Olson,  statute    has    been    complied    with, 

141     Mich.     580;    John     Duncan  attaching     the     return     of     the 

Land   &   Lumber   Co.  v.   Rusch,  sheriff  and  registry  receipts. 

145   Mich.   1.     It  is  unnecessary  74.     Bradlev  v.   Williams,   139 

that  the  return  show  the  official  Mich.  230. 

capacity  of  the  person  upon  75.  Winters  v.  Cook,  140 
whom  the  notice  was  served,  as  Mich.  483,  487.  The  court  says: 
an  executor;  White  v.  Shaw,  "It  imposes  upon  the  purchaser 
150  Mich.  270.  Redemption  by  the  obligation  of  good  faith, 
a  mortgagee  shall  not  be  deem-  and  an  earnest  effort  to  ascer- 
ed  an  absolute  conveyance,  but  tain  the  owner  and  his  where- 
only  an  additional  lien  in  his  abouts,  and  an  honest  attempt 
favor,  drawing  interest  at  the  to  give  him  actual  notice  and 
rate  of  six  per  cent  per  annum.  the  statutory  opportunity." 
An  application  for  a  writ  of 


575 


FORECLOSURE  OF  TAX  LIEN 


notice  to  be  served  upon  the  holder  of  the  last  recorded  deed 
in  the  regular  chain  of  title.  This  provision  is  quite  in- 
definite, and  has  not  been  definitely  settled  by  the  court.  It 
has  been  held  that  the  vendee  in  a  recorded  contract  for  the 
sale  of  land  was  within  the  spirit  of  the  law;  but  the  court 
did  not  determine  whether  or  not  he  was  entitled  to  service 
of  the  statutory  notice70.  In  any  event,  the  six  months 
limitation  against  assailing  a  tax  deed,  provided  by  §143. 
does  not  run  against  the  holder  of  an  unrecorded  contract  of 
purchase  who  had  not  received  notice  of  the  sale77.  The 
statute  requires  notice  to  be  served  upon  the  holder  of  the 
last  recorded  deed  issued  by  the  auditor  general,  this  evi- 
dently contemplates  a  recording  of  the  tax  deed  in  the  county 
where  the  land  is,  situated.  When  a  subsequent  tax  pur- 
chaser also  acquires  the  original  title  to  the  land  and  there 


76.  The  statute  provides  for 
notice  "upon  the  grantee  or 
grantees  under  the  last  recorded 
deed  in  the  regular  chain  of 
title  to  said  land,"  and  upon 
mortgagees  and  their  assignees, 
of  record.  Our  court  has  not 
defined  what  constitutes  a 
"regular  chain  of  title."  A  fair 
construction  of  the  provision 
would  mean  such  a  chain  of 
title  as  would  carry  the  pre- 
sumption of  ownership.  It  will 
be  noticed  that  the  statute  does 
not  require  the  entire  "chain" 
to  be  of  record,  but  only  the 
last  deed  thereof.  All  of  the 
evidence  of  title  not  being  re- 
quired to  be  of  record,  it  would 
follow  that  a  deed  from  a  party 
who  had  obtained  his  title  by 
adverse  possession  would  be 
such  a  'Mast  recorded  deed  in 
the  regular  chain  of  title"  as 
would  entitle  the  holder  of  the 
deed  to  notice.  The  court 
would  presume  that  the  state, 
and  all  other  intermediate 


owners  of  the  property,'  if  any, 
had  conveyed  their  rights  to  the 
grantor  in  such  deed,  following 
Gamble  v.  Horr,  40  Mich.  561, 
discussed  in  §205,  supra.  In 
that  case,  the  statute  provided 
that  no  one  should  be  permitted 
to  question  a  tax  deed  without 
proving  that  his  title  had  been 
acquired  either  from  the  United 
States,  or  the  state.  The  plain- 
tiff there  was  unable  to  make 
such  proof,  but  he  did  make 
such  a  showing  as  constituted 
pritna  facie  proof  of  ownership. 
The  court  held  that  the  law 
would  then  presume  the  neces- 
sary grant  from  the  govern- 
ment. In  Jackson  v.  Mason. 
143  Mich.  355.  the  question  of 
duty  to  serve  upon  the  vendee 
in  a  land  contract,  was  not 
decided;  but  he  was  evidently 
allowed  to  defend  against  the 
notice.  See  5198.  supra. 

77.     Jakabowski      v.      Auditor 
General,  144  Mich.  46. 


§  404  THE  LAW  OF  TAXATION  576 

are  no  outstanding  claims  against  the  premises  excejjting 
prior  unrecorded  tax  deeds,  no  notice  need  be  given78.  The 
Act,  204  of  Public  Acts  of  1899,  did  not  require  service  of 
notice  upon  a  prior  tax  title  holder,  as  he  was  not  a  grantee 
"in  the  regular  chain  of  title."  Though  a  prior  tax  title 
holder  is  now  entitled  to  notice  if  his  deed  is  of  record,  under 
Act  236  of  public  acts  of  1903,  yet  a  tax  title  purchaser 
under  the  former  act  is  not  bound  to  give  any  notice  to  the 
holder  of  any  other  tax  purchase.  This  purchase  of  the  in- 
terest of  the  state  is  a  contract  with  the  state,  and  is  not  sub- 
ject to  change  by  either  without  the  consent  of  the  other. 
The  state  could  not  require  other  notices  to  be  served  upon 
persons  claiming  under  other  tax  titles,  without  impairing 
the  obligation  of  the  contract79.  Notice  to  a  tax  title  holder 
by  the  register  in  chancery  that  the  requisite  sum  to  redeem 
the  title  has  been  deposited  with  himself  by  the  holder  of 
the  original  title,  is  a  sufficient  notification  for  a  reconvey- 
ance80. Where  lands  are  assessed  as  an  entirety,  but  the 
title  is  in  several  undivided  owners,  the  notice  must  be  served 
on  all  such  owners.  Until  there  is  such  service,  any  one  of 
them  may  redeem  from  the  sale81. 

§404.     Writs  of  Assistance.     Defenses  to, 

i 

As  heretofore  pointed  out,  such  defense  must  go  to  the 
jurisdiction  of  the  court  entering  the  decree.     Where  the 

78.  Miller    v.    Meilstrup,    144  Co.   v.   Rusch,   145   Mich.   1;    In 
Mich.  643.  Weller   v.    Wheelock,    15    L.    N. 

79.  Griffin     v.     Jackson,     145  856,              Mich.            it    is    held 
Mich.   23;   In   Avery  v.    Backus,  that  Act  236  of  Public  Acts  of 
16  L.  N.  103,              Mich.            ,  1903  applied  to  prior  purchasers 
it  is  held  that  Act  142  of  Public  insofar   as   making  it  lawful   to 
Acts    of    1905,   requiring   service  deposit  money  with  the  register 
upon  a  defendant,  did  not  apply  in  chancery. 

to   tax   purchasers   prior   to   the  81.     White      v.      Shaw,      150 

act.  Mich.  270. 

80.  Escanaba     Timber    Land 


577  FORECLOSURE  OF  TAX  LIEN  §  404 

owner  of  the  land  lias  a  certificate  from  the  proper  officer 
that  the  taxes  were  paid  for  the  year  for  which  the  land  was 
sold,  it  will  be  a  defense  to  a  writ  of  assistance,  if  set  up  by 
way  of  cross  petition.  Inasmuch  as  the  tax  deed  could  be 
set  aside  on  a  petition  therefor,  this  defense  may  be  made  on 
the  application  for  the  writ82.  It  would  seem,  however,  that 
the  practice  now  is  to  defer  issuing  the  writ  until  an  applica- 
tion can  be  made  to  the  auditor  general  to  cancel  the  tax  deed, 
and  that  the  fact  of  payment,  or  a  certificate  of  payment, 
cannot  be  shown  as  a  reason  for  denying  the  writ83.  The 
land  owner  may  defeat  a  writ  of  assistance  by  showing  the 
illegality  of  the  sale84, "or  that  the  notice  was  defective85. 
The  owner  may  also  show  lack  of  jurisdiction  in  the  court 
to  enter  the  decree8*.  He  may  show  that  the  proof  of  ser- 
vice if  notice  has  not  been  filed  six  months87 ;  or  that  the 
tax  title  purchaser  did  not,  in  good  faith,  attempt  to  have 
personal  service  made  upon  him88 ;  or  that  the  notice  was 
not  in  fact  served89.  Where  the  auditor  general  erroneously 
issues  two  deeds  for  the  same  property,  to  different  per- 
sons, the  first  being  invalid,  and  the  owner  redeems  from 
such  invalid  deed,  he  will  likewise  be  allowed  to  redeem 
from  the  second  or  valid  deed  on  an  application  for  a  writ 
of  assistance,  the  law  does  not  contemplate  a  forfeiture 
where  the  owner,  in  good  faith,  attempts  to  redeem90.  The 

82.  See  petition  to  set  aside  decree  on  a  petition  for  a  writ 
decree,    5398,    supra;    Carpenter  is    held    res   judicata   as    to    the 
v.  Jones    117  Mich.  91.  validity  of  the  tax  decree. 

83.  Mann      v.      Carson,      121  86.     Sanborn   Co.  v.  Johnson, 
Mich.  631,  638.  148  Mich.  405. 

84.  Citizens'   Savings   Bank  v.  87.     Pike    v.    Richardson,    136 
Auditor  General,  123  Mich.  511;  Mich.  414. 

Jenkinson    v.    Auditor    General,  88.  Winters     v.     Cook,     140 

104  Mich.  34.  Mich.  483. 

85.  Ball     v.     Ridge     Copper  89.  Williams    v.    Olson,    141 
Co.,    118    Mich.    7;    Hooker    v.  Mich.  580. 

Bond,  118   Mich.  255;   Peters  v.  90.     Miller      v.      Steele,      14« 

Youngs,    122    Mich.    484.      The      Mich.  123. 

(87) 


§  404  THE  LAW  OF  TAXATION  578 

fact  that  illegal  items  were  included  in  the  tax  decree  will 
not  deprive  the  court  of  jurisdiction,  nor  defeat  a  writ  of 
assistance91.  An  owner  will  not  be  held  guilty  of  laches 
who  takes  action  promptly  to  prevent  the  enforcement  of  a 
writ  of  assistance.  The  tax  purchaser  must  comply  with  the 
statute  and  cannot,  in  this  respect,  rely  upon  the  laches  of 
the  owner92. 


91.     Blauchard  v.   Young,  152          92.     Sanborn    Co.    v.    Alston, 
Mich.  619.  153  Mich.  456. 


CHAPTER  XXIV. 
ACTIONS  AT  LAW. 


5405.  Form  of  Action  for  Tax. 

5406.  Actions  for  Special  Assessments. 

5407.  Suits  Against  State. 

5408.  Actions  Against  Collector. 

5409.  Actions  Against  Municipalities,  Assumpsit. 

Form  for  Declaration  Against  a  Municipality. 

5410.  Presenting  Claim  to  City. 

5411.  Replevin. 

5412.  Trover. 

5413.  Trespass. 

5414.  Mandamus  to  Pay  Money. 
§415.  Mandamus  as  to  Other  Duties 

5416.  Mandamus  to  Review  Action  of  Court. 

§417.  Mandamus  In  Re  Drain  Proceedings. 

§418.  Mandamus  In  Re  Special  Assessments. 

5419.  Ejectment. 

5420.  Recovery  for  Improvements  and  Taxes. 

5421.  Improvements,  Claim  of  Property. 
§422.  Certiorari  In  Re  General  Tax. 

§423.  Certiorari  In  Re  Special   Assessments. 

5424.  Certiorari  in  Drain  Proceedings. 

5425.  Time  of  bringing  Certiorari. 

5426.  Certiorari,  Injury. 

5427.  Certiorari  and  Collateral  Actions. 

5428.  Certiorari,  Errors  not  Cured  by  Return. 

5429.  Certiorari,  Explanations  in  Return. 


§405.     Actions  for  Tax.    Form. 

The  officer  who  sues  in  the  name  of  the  township  is  al- 
lowed "to  take  all  lawful  ways  and  means  for  the  collection 
of  debts ;"  and  the  theory  of  the  proceeding  is  that  an  obliga- 
tion is  cast  by  statute  on  the  delinquent  tax  payer  to  pay  a 
specific  sum  of  money  to  the  township  officer,  and  that  on 
the  strength  of  this  legal  liability  a  proper  action  may  be 
maintained.  The  form  of  the  action  is  debt  or  assumpsit, 


£  405  THE  LAW  OF  TAXATION  580 

the  count  explainin  brieby  the  subject  matter  of  the 
debt.  A  special  declaration  is  not  required;  though 
one,  if  drawn  according  to  the  statutory  provisions, 
would  not  be  improper1.  Unless  specially  authorized, 
the  township  cannot  commence  this  action  until  the  war- 
rant in  the  hands  of  the  collector  is  returned  unsatisfied2. 
It  is  no  defense  to  such  an  action  that  the  collector  might 
have  found  personal  property  upon  which  to  levy3.  Either 
the  township  treasurer  may  bring  the  suit  under  the  war- 
rant issued  by  the  county  treasurer,  or  the  township,  under 
the  agency  of  the  supervisor,  after  the  treasurer's  warrant 
has  expired,  may  institute  the  suit4.  Aside  from  statutory 
provisions,  it  is  the  general  rule  that  public  officers  need 
not  be  expressly  authorized  by  statute  to  bring  suit,  but  their 
capacity  to  sue  is  commensurate  with  their  public  trusts  and 
duties5.  Where  the  municipality  pays  over  uncollected  state 

1.  Putman      v.      Fife      Lake  437,   it    is    held    that   an    action 
Twp.,  45   Mich.   125,   bought  by  cannot    be    commenced    until    a 
the     township     treasurer    under  verified    return    has    been    filed. 
C.    L.    1871,   §1014,   for   taxes   of  In  Sturgis  v.  Flanders,  97  Mich. 
1876.  546;   it   is   held   that   the   village 

2.  In    Boyce    v.    Stevens,    86  marshal  can  only  bring  suit  for 
Mich.    549,    it    is    held    that    a  personal  tax,  after  the  return  of 
defective  return,  if  it  states  the  his    warrant,    H.    S.    §2939.      In 
taxes     are     uncollectable,     will  Chelsea   v.    Holmes,    137    Mich, 
support   a   suit.      Decatur   Twp.  195,    it    is    held,    under    C.  ,  L. 
v.    Coply,    133    Mich.   546;    Mus-  §§2868,     2871      that     the     muni- 
kegon    v.    Martin    Lumber    Co.,  cipality  can  bring  suit  after  the 
86  M:ch.  625;  Port  Huron  Twp.  return  of  the  warrant,  although 
v.     Potts,    78    Mich.    435;    Me-  no  levy  had  been  made. 
Callum    v.  ^Bethany    Twp.,    42  3.     Deerfield  Twp.  v.  Harper, 
Mich.     457;     Bangor     Twp.     v.  115    Mich.   678. 

Smith  Transportation  Co.,  106  4.  C.  L.  §3879,  as  to  town- 
Mich.  223;  Staley  v.  Columbus  ship  treasurer  C.  L.  §3863  as  to 
Twp,  36  Mich.  38;  In  Grand  township.  Bangor  Twp.  v. 
Rapids  v.  Welleman,  85  Mich.  Smith  Transportation  Co.,  113 
234,  it  is  held  that  under  the  Mich.  601;  Port  Huron  Twp. 
charter,  suit  could  be  brought  v.  Potts,  78  Mich.  435. 
before  the  tax  return  was  made.  5.  Auditor  General  v.  Lake 
In  Northwestern  Lumber  Co.  v.  George,  etc.,  Ry.,  82  Mich.  426, 
Scott,  123  Mich.  357,  and  Port  429;  Berrien  Co.  Treasurer  v. 
Huron  Twp.  v.  Potts,  78  Mich.  Bunbury,  45  Mich.  79,  84. 


581  ACTIONS  AT  LAW 

and  county  taxes  upon  personal  property,  to  the  county  treas- 
urer, it  may  maintain  assumpsit  against  the  delinquent  tax 
payer.  Such  payment  is  in  no  sense  voluntary6.  Where, 
however,  a  specific  remedy  is  provided  in  the  tax  law  as 
the  proper  method  of  collection,  no  suit  will  lie  unless 
specially  provided  for,  and  then  only  as  so  provided7.  While, 
in  some  cases,  the  particular  property  assessed  may  be  levied 
upon  to  pay  the  tax,  yet  the  treasurer  can  only  bring  his  suit 
against  the  person  assessed  on  the  roll;  and  if  such  person 
is  not  the  owner,  the  municipality  cannot  recover8.  A  mis- 
take in  the  name  of  the  owner  of  personal  property,  how- 
ever, will  not  bar  a  suit  against  the  real  owner,  but  the  tax, 
by  the  municipality9.  But  where  the  personal  property  of  a 
corporation  is  assessed  against  a  corporation,  the  munici- 
pality cannot  bring  its  action  against  a  trustee  of  the  cor- 
poration. If  the  person  sued  was  the  real  owner,  the  rule 
would  be  different10.  Suit  may  be  brought  against  an  ad- 
ministrator or  executor,  where  he  has  distributed  the  entire 
estate  without  paying  the  personal  tax11.  The  taxes  spread 
in  the  various  wards  of  the  city  becomes  a  debt  due  the  city; 
and  the  city,  not  the  ward,  is  the  proper  party  to  bring  the 
action12.  Suit  may  be  brought  by  the  township  treasurer 

6.  Pontiac      v.      Axford,     49  300,  supra.     Menoninee  v.  Mar- 
Mich.   69.  tin   Lumber  Co.,  119  Mich.  201. 

7.  In     Detroit     v.     Jepp,     52  10.     Homer    Twp.    v.    Smith, 
Mich.    458,    it    is    held    that   the  141   Mich.   586. 

old  charter  of  Detroit  provided  11.     Orion    Twp.    v.    Axford, 

fully    for    the    enforcement    of  112  Mich.  175. 

personal  taxes  by  process  from  12.     St.    Joseph    v.    Vail,    137 

the   receiver   of  taxes,  and  that  Mich.     276.     construing     C.     L. 

suit  would  not  lie.  §3863.     C.  L.  82871  provides  for 

8.  Laketon    Twp.    v.   Akeley,  the  bringing  of  suit  by  villages 
74  Mich.  695.     In  Iron  Star  Co.  to  collect  a  tax.     In  Village  of 
v.    Wehse,    117    Mich.    487,    the  Chelsea    v.    Holmes,    137    Mich, 
owner,  in  replevin,  for  property  195,    supra,   it    is   held   that    the 
seized,   it   is   said   to  be  estopped  village     may     bring     such     suit 
from   complaining    of   an    error  before    the     expiration    of    the 
in   its  name.  warrant. 

9.  See     Healing     Acts.     §§223 


§  405  THE  LAW  OF  TAXATION  582 

to  collect  a  tax  on  personal  property,  when  he  is  so  author- 
ized by  the  supervisor13.  But  the  supervisor  cannot  bring 
suit  in  the  lifetime  of  the  warrant,  under  C.  L.  §3870;  nor 
can  the  supervisor,  under  C.  L.  §§2336,  3863,  bring  suit 
during  that  time14.  The  county  treasurer  may  bring  suit 
upon  a  former  treasurer's  bond,  for  the  benefit  of  the 
county15. 

Statutory  Provisions. 

C.  L.  §2868,  after  providing  for  distress  and  sale  of 
goods  by  the  treasurer  of  a  village,  provides  further: 
"And  for  such  purpose  and  for  the  collection  of  the 
taxes  aforesaid,  the  treasurer  may  bring  suit  therefor, 
and  shall  have  all  the  powers  and  perform  the  like  duties, 
so  far  as  applicable,  as  are  conferred  upon  or  required 
of  township  treasurers,  in  the  collection  of  taxes  levied 
in  townships." 

C.  L.  §2871,  with  reference  to  villages,  provides : 
"Whenever  the  treasurer  shall  be  unable  to  collect  any 
tax  assessed  upon  personal  property  in  the  village  it 
shall  be  lawful  for  the  treasurer  of  the  village  to  bring 
suit,  in  the  name  of  the  village,  for  the  recovery  thereof, 
against  the  person  or  persons  against  whom  the  tax 
was  assessed  before  any  court  of  competent  jurisdiction 
and  to  take  and  use  all  lawful  means  provided  by  law 
for  the  collection  of  debts  to  enforce  the  payment  of 
such  tax;  and  in  such  cases  all  the  provisions  of  law 
applicable  to  suits  and  the  evidence  therein,  brought  by 

13.  Ovid  Twp.  v.  Haire,  133      holding  that  the  treasurer  may 
Mich.   353.  bring    the    suit,    during   the    life 

14.  Decatur  Twp.  v.  Copely,      of  the  warrant. 

133  Mich.  546;  Wayne  Village  15.  Buhrer  v.  Baldwin,  137 
v.  Goldsmith,  141  Mich.  528;  Mich.  263. 


583  ACTIONS  AT  LAW 


township  treasurers  in  the  name  of  their  township  for 
such  purposes,  shall  apply." 

C.  L.  §3870,  provides:  "*  *  *  The  township 
treasurer,  if  otherwise  unable  to  collect  a  tax  on  per- 
sonal property,  may  sue  the  person,  firm,  or  corporation 
to  whom  it  is  assessed,  in  the  name  of  the  township 
village  or  city,  and  garnishes  any  debtor  or  debtors  of 
such  person,  firm  or  corporation.  The  tax  roll  shall  be 
prima  fatie  evidence  of  the  debt  sought  to  be  recov- 
ered." 

C.  L.  §3334,  with  reference  to  cities  of  the  Fourth 
Class,  provides:  "*  *  *  The  city  collector  may, 
and  it  shall  be  his  duty  to  proceed  by  suit  in  the  name 
of  the  city,  for  the  collection  of  unpaid  taxes  in  the 
same  cases,  and  under  like  circumstances  in  which  town- 
ship treasurers  are  authorized  to  proceed  in  that  man- 
ner and  all  the  provisions  of  law  applicable  to  suits  and 
evidence  therein  brought  by  township  treasurers  in  the 
name  of  their  township  for  such  purposes,  shall  apply 
to  suits  brought  by  the  city  treasurer  as  aforesaid." 

C.  L.  §2336,  provides:  "*  *  *  That  the  super- 
visor of  such  township  shall  be  the  agent  for  his  town- 
ship, for  the  transaction  of  all  legal  business-,  by  whom, 
suits  may  be  brought  defended,  and  upon  whom  all 
process  against  the  township  shall  be  served." 

§406.     Actions  for  Special  Assessments. 

Where  an  assessment  is  invalid  and  is  set  aside,  the  city 
canrrot  thereafter  bring  an  action  at  law  'to  recover  the  pro- 
portion of  the  tax  the  land  owner  ought  to  pay.  When  a 
person  is  held  liable  for  his  special  share  of  a  public  burden, 
it  must  be  determined  by  some  form  of  assessment  whereby 


§  407  THE  LAW  OF  TAXATION  584 

the  burden  is  distributed  on  some  uniform  basis;  the  court 
will  not  try  to  determine  that  proportion16.  A  contractor 
cannot  bring  his  action  against  the  city  where  he  has  only 
partly  performed  his  contract,  unless  the  work  is  stopped 
by  the  city  entirely17. 

§407.     Suits  Against  State. 

The  state  cannot  be  sued  without  its  consent.  While  there 
is,  no  doubt,  some  difficulty  in  drawing  with  precision  any 
exact  line  of  jurisdiction,  it  is  very  clear  that,  where  money 
has  gone  into  the  state  treasury,  not  as  a  separate  and  in- 
dependent item  wrongfully  received,  but  as  a  part  of  a  gen- 
eral balance  rightfully  received,  the  recovery  of  it  from 
the  state,  if  not  voluntarily  allowed  within  the  authority  of 
some  proper  officer,  must  fall  within  the  same  rules  that 
would  apply  to  any  other  pecuniary  demands  against  the 
state.  If  this  money  had  been  found  in  a  city  or  county 
treasury  among  the  book  balances  or  other  charges  or  credits, 
or  if  it  had  been  retained  by  an  individual  upon  an  error  in 
stating  accounts,  it  could  not  be  distinguished  from  other 
causes  of  action  usually  prosecuted  in  a  suit  for  money  had 
and  received.  It  is  simply  so  much  money  kept  back  out 
of  the  collections  made  by  the  state  for  the  benefit  of  the 
county.  If  the  state  could  be  sued  it  would  not  be  a  proper 
case  for  mandamus.  The  fact  that  actions  will  not  lie  against 
the  state  does  not  change  the  nature  of  the  claim  or  make 
it  anything  but  a  state  debt.  Upon  this  principle,  where  a 
county  has  once  paid  an  illegal  claim  to  the  state  it  cannot 
set  off  this  payment  against  later  valid  claims  of  the  state18. 

16.  Manistee    v.    Hasley,    79  18.     See      County     Treasurer, 
Mich.  238.  §166;  State  Taxes,  §109.  Auditor 

17.  Mathewson       v.       Grand  General     v.     Bay     County,     106 
Rapids,  88   Mich.  558.  Mich.      662,      665;      Ambler      v. 


585  ACTIONS  AT  LAW 


No  suit  which  is  in  reality  against  the  state  can  be  main- 
tained against  a  state  officer  or  the  auditor  general.  The 
only  cases  in  which  a  writ  can  issue  against  him  are  cases 
of  strict  right,  where  his  action  was  plainly  unlawful,  or 
where  there  was  some  duty  involved  to  do  or  not  to  do  the 
act  in  dispute.  In  most  instances  affecting  private  or  cor- 
porate rights  no  discretion  could  lawfully  be  given  which 
would  interfere  with  private  remedies.  In  a  large  class  of 
the  auditor  general's  duties  the  statutes  are  specific  enough 
to  relieve  the  controversies  which  may  arise  from  any  con- 
flict of  jurisdiction.  While  no  individual  can  bring  an  action 
against  the  state,  yet  if  the  state  brings  its  action  against 
an  individual,  it  is  limited  in  its  recovery  by  any  defenses 
which  might  be  set  up  against  individual  plaintiffs19.  Where 
the  set  off  claimed  is  in  its  nature  in  assumpsit,  and  the  right 
claimed  to  make  the  set  off  is  only  an  irregular  form  of  action 
against  the  state,  such  a  suit  cannot  be  maintained,  directly 
or  indirectly  involving  a  common  law  issue  only,  against  the 
state20.  A  bill  will  not  lie  against  the  state,  or  the  auditor 

Auditor   General,   38   Mich.   746,  the     relator.       Mich.     Southern, 

750;    Auditor    General    v.    Van  etc.,   Ry.   v.   Auditor   General,  9 

Tassell,    73    Mich.    29;    Auditor  Mich.  448,  was  an  injunction  bill 

General  v.  Gd.  Traverse  Co.,  73  to   restrain   the   levy  of  specific 

Mich.   182.  taxes.       In     Smith     v.     Auditor 

19.     Ambler   v.    Auditor   Gen-  General,  20  Mich.  398,  a  bill  was 

eral,     38     Mich.     746.       In     St.  sustained  to  restrain  the  auditor 

Marys      Falls,      etc.,      Co.      v.  general    from    selling  lands    for 

Auditor    General,    7    Mich.    86,  illegal     interest.       In     Jackson 

the  Auditor  General  was  direct-  Mining  Co.  v.  Auditor  General, 

ed    to    cancel    certain    taxes    in  32    Mich.   488.   the   auditor  gen- 

pursuance    of    a    contract    with  eral    was    restrained    from    col- 

the  state.    In  Throop  v.  Auditor  lecting  an  illegal  specific  tax. 
General,      9      Mich.      134,      the          20.     Auditor    General    v.    Gd. 

auditor  general  was  directed  to  Traverse     Co.,    73     Mich.     182; 

reject   certain   taxes   on   bounty  Ambler   v.   Auditor   General.   38 

lands     in     pursuance     of     the  Mich.   746;    Auditor   General   v. 

statute.      In    Houghton    Co.    v.  Saginaw     Co.,     62     Mich.     578; 

Auditor    General,    9    Mich.    141.  U.    S.    v.    Robeson,   9    Pet.   319; 

the  auditor  General  was  directed  U.   S.   v.   Gilmore.   7   Wall.     4'.M  : 

to  pay  certain   specific  taxes  to  Watkins   v.   I'.   S.,  9  Wall.  765. 


§  408  THE  LAW  OF  TAXATION  586 

general,  in  the  absence  of  statutory  authority,  to  quiet  title 
to  lands  bid  off  to  the  state  for  delinquent  taxes,  in  the  ab- 
sence of  a  claim  that  the  sale  was  tainted  with  fraud,  or  that 
some  officer  has  either  acted  or  is  about  acting,  i'n  some 
unauthorized  and  illegal  manner.  Where  the  owner  of  prop- 
erty allows  the  tax  proceedings  to  culminate  in  a  sale  to  the 
state,  the  tax  title  cannot  be  contested  unless  the  state  con- 
sents to  become  a  litigant  for  the  purpose,  and  points  out 
the  officer  to  be  made  a  party21. 

§408.     Actions  Against  Collector. 

If  tax  proceedings  are  fatally  defective  on  their  face,  a 
suit  will  lie  against  a  collector  to  recover  money  involun- 
tarily paid  on  them.  The  action  may  be  that  of  trespass, 
or  other  suitable  form.  Where  the  warrant  is  bad  upon  its 
face,  anyone  who  seeks  to  enforce  it  is  a  wrong-doer,  and 
any  money  obtained  under  it  being  unlawfully  obtained,  the 
collector  has  no  right  to  pay  it  into  the  treasury,  and  such 
payment  will  not  exonerate  him.  No  relationship  of  prin- 
cipal and  agent  can  exist  under  a  law  which  is  null,  and  the 
case  cannot  be  likened  to  that  of  an  innocent  agent  who, 
without  personal  fault,  receives  money  by  mistake  and  trans- 
mits it  to  his  principal.  The  immunity  belonging  to  such 
transactions  does  not  extend  to  wrong  doers22.  An  assess- 
ment, however,  is  in  the  nature  of  a, judgment,  and  cannot 
be  assailed  for  fraud  or  irregularity  in  a  suit  against  an 
officer  who  holds  a  process  fair  on  its  face,  for  enforcing  a 
tax  based  upon  it23. 


21.  Burrill    v.    Auditor    Gen-  Cummings,  44  Mich.  359;  Smith 
eral,  46   Mich.  256.  v.  Bank,  17  Mich.  479. 

22.  First   Nat.   Bank  v.  Wat-  23.     Moss    v.     Cummings,    44 
kins,  21   Mich.  483,  488;  Moss  v.  Mich.   359. 


587  ACTIONS  AT  LAW  §  409 

§409.     Actions  Against  Municipalities.     Assumpsit. 

When  a  municipality  is  sued  for  money  collected  and  paid 
over  to  it  for  a  tax,  the  question  involved  is  whether  the 
municipality  has  money  in  its  hands  which  equitably  belong 
to  the  plaintiff.  The  suit  will  not  lie  to  recover  back  taxes 
simply  because  their  levy  and  collection  have  been  irregular. 
There  must  be  something  which  either  exempts  the  party 
from  taxation  altogether,  or  deprives  the  officers  of  jurisdic- 
tion because  of  illegality  or  inequality24.  In  this  action  the 
liability  of  certain  classes  of  property  to  taxation,  when 
clearly  identified  and  separable,  is  examinable.  Thus  the 
plaintiff  may  show  that  the  personal  property  assessed  to 
him  was  in  fact  a  legacy  still  in  the  hands  of  the  executor25. 
In  cases  of  recovery,  interest  is  allowed  against  the  munici- 
pality26. Where  a  tax  is  paid  under  protest,  whether 
statutory  or  common  law,  the  plaintiff  must  show  the  fol- 
lowing concurring  facts  existing  at  the  time  suit  is  brought : 

First.  That  the  treasurer  or  collector  was  armed  with  a 
tax  roll,  with  a  proper  warrant  attached,  and  demanded  the 
payment  of  a  tax  appearing  on  the  roll  as  assessed  against 
him,  and  had  levied  or  threatened  to  levy  the  same  upon 
his  property,,  unless  the  same  was  paid. 

Second.  That  he  paid  the  same  under  protest  to  relieve 
his  property  from  the  levy  or  threatened  levy. 

Third.  That  the  tax  was  void,  and  the  municipality  had 
no  legal  right  to  demand  or  have  it27. 

24.     An  action  will  lie  to  re-          25.     Herrick    v.    Big    Rapids, 

cover  an   excess  of  taxes  only.  53  Mich.  554. 
See    excess,    §9142,    166;    Grat-          26.     Grand  Rapids  v.  Blakely, 

wick,      etc.,      Lumber      Co.     T.  40  Mich.  367;  Daniels  v.  Water- 

Oscoda    Village,    97    Mich.    221,  town  Twp.,  55  Mich.  376. 
227;      Daniels      v.      Watertown          27.    Turnbull  v.  Alpena  Twp., 

Twp..     55     Mich.     376;     Minor  74    Mich.    621,    627;    Louden    v. 

Lumber  Co.  v.  Alpena,  97  Mich.  East  Saginaw,  41   Mich.  18.     In 

499;  White  v.   Millbrook  Twp.,  Nicodemus     v.     East     Saginaw, 

60  Mich.  532.  25   Mich.   456,  the  warrant  had 


§  409  THE  LAW  OF  .TAXATION  588 

An  action  will  lie  against  a  municipality  for  an  illegal 
special  assessment  where  the  municipality  makes  the  contract 
for  the  improvement,  as  a  paving  or  sewer  tax28 ;  but  when 
the  municipality  is  in  no  manner  liable  for  the  improvement, 
as  a  drain,  it  will  not  be  liable  for  the  illegal  tax  collected, 
though  the  collecting  officer  be  the  treasurer  of  the  munici- 
pality29. The  proceedings  of  taxing  officers  are  not  to  be 
criticised  with  microscopical  nicety,  and  the  exact  time  and 
method  of  every  step  examined  to  detect  a  departure  from 
the  law,  however,  insignificant  or  unintentional.  The  policy 
of  the  law  is  that  all  parties  shall  pay  legal  taxes  even  though 
there  may  be  some  irregularity  in  demanding  them,  and 
that  they  shall  complain  to  the  courts  of  those  errors  only 
which  may  injure  them.  The  possibility  of  collecting  the 
state  revenue  depends  upon  the  observance  of  this  policy, 
and  the  court  does  not  feel  bound  to  examine  in  detail  every 
irregularity  which  a  record  may  show.  It-  is  probable  that 
in  no  tax  case  have  all  the  proceedings  been  exactly  and 
punctiliously  correct,  but  they  are  sufficiently  so  far  legal 
purposes  in  any  case  if  no  error  is  committed  which  can 
prejudice  the  person  taxed30.  Where  the  illegal  taxes  have 
been  paid  to  the  municipal  collector,  it  will  be  presumed, 
in  an  action  for  their  recovery,  that  the  money  was  turned 
into  the  municipal  treasury31.  The  suit  should  be  brought 

expired     when     the     threat     of  §§142,    166.     Stockle   y.    Silsbee, 

levy   was   made.     Held,   that   the  41   Mich.  615,  618;  Minor  Lum- 

action    would    lie,    and    that    it  her  Co.  v.  Alpena,  97  Mich.  499. 

would    be    presumed    the    col-  In   Loud  Lumber  Co.  v.  Elmer 

lector  had  paid  the  money  into  Twp.,   123    Mich.   61,   It   is   held 

the  treasury.  that  a  conveyance  for  the  pur- 

28.  Nicodemus  v.   East  Sagi-  pose    of    avoiding    payment    of 
naw,    25    Mich.   456;   Louden   v.  taxes  will  not  release  the  grant- 
East  Saginaw,  41  Mich.  18.  or. 

29.  Camp  v.  Algansee  Twp.,  31.     Nicodemus  v.  East  Sagi~ 
50  Mich.  4;  Dawson  v.  Aurelius  naw,   25    Mich.    456;    Daniels   v. 
Twp.,  49  Mich.  4V9.  Watertown  Twp.,  55  Mich.  376. 

30.  See     Excess     of     Taxes, 


589  ACTIONS  AT  LAW  ?4»>'.i 

without  unreasonable  delay.  It  is  grossly  unjust  to  allow 
a  claim  to  sleep  for  several  years  and  then  bring  this 
action32.  Assumpsit  lies  against  a  township  for  money  re- 
ceived on  the  sale  of  property  for  an  illegal  tax,  and  not 
mandamus.  Such  a  case  generally  involves  disputed  ques- 
tions of  residence  and  business,  and  therefore  generally 
necessary  that  a  jury  should  determine  the  issue83. 

Form  for  Declaration  Against  a  Municipality. 

State  of  Michigan,  *\ 

The  Circuit  Court  for  the  County  of  Monroe.    >  «• 
County  of ) 

of  the  city  of of  said  county,  plaintiff 

herein,  by ,  his  attorney,  complains  of  the  city  of 

,  defendant  in  this  suit,  the  said  city  of 

having  been  duly  summoned  to  answer  the  said  plaintiff,  on 
a  plea  of  trespass  on  the  case  upon  promises: 

For  that,  whereas,  the  said  defendant  heretofore,  to-wit, 

on  the day  of ,  at  the  city  of ,  said  county 

of ,  was  indebted  to  the  plaintiff  in  the  sum  of 

dollars  for  so  much  money  before  that  time  which  had  been 
received  by  the  said  defendant  to  and  for  the  use  of  said 
plaintiff. 

And,  being  so  indebted,  the  said  defendant,  in  considera- 
tion thereof,  afterwards,  to-wit,  on  the  same  day  and  year 
aforesaid,  undertook,  and  then  and  there  faithfully  prom- 
ised said  plaintiff,  well  and  truly  to  pay  unto  the  said  plain- 
tiff the  said  sum  of  money  last  above  mentioned,  when  said 
defendant  should  be  thereunto  afterwards  requested. 

32.  Louden  v.  East  Saginaw,  itarium,    etc.    v.    Battle    Creek, 
41   Mich-  18,  26-7.  168    Mich.    676;    Baily    v.    Bay 

33.  Byles  v.  Golden  Twp..  52  City,  139  Mich.  495. 
Mich.    612:    Battle    Creek    San- 


§  410  THE  LAW  OF  TAXATION  590 

Nevertheless,  the  said  defendantt  although  often  after- 
wards requested  so  to  do,  has  not  as  yet  paid  the  said  sum 
above  mentioned,  or  any  part  thereof,  to  said  plaintiff;  but, 
to  pay  the  same,  or  any  part  thereof,  to  the  said  plaintiff,  the 
said  defendant  has  hitherto  wholly  refused  and  still  does 
refuse;  to  the  damage  of  the  said  plaintiff  in  the  sum  of 
dollars,  therefore  he  brings  suit,  and  etc. 


Attorney  for  plaintiff. 

To  the  above  named  defendant: 

Take  notice  that  the  following  is  a  bill  of  particulars  of 
the  demand  of  the  plaintiff,  namely: 

cash  paid  to  release  the  property  of  plaintiff 

from  levy  and  sale  by  the  treasurer  of  the  defendant  by  vir- 
tue of  a  warrant  annexed  to  a  pretended assessment 

roll,  made,  adopted  and  issued  by  the  direction  of,  the  com- 
mon council  against  the  premises  of  plaintiff  in  the  said  city 

of which  said  cash  was  paid  as  aforesaid,  under 

protest  and  which  said  roll  and  warrant  are  illegal  and  void; 

the  said  money  includes  an  assessment  of dollars,  and 

expenses  of  levy  and  soforth dollars,  total 

dollars. 


Attorney  for  plaintiff. 

§410.     Presenting  Claim  to  City. 

The  presenting  of  the  claim  to  a  city  or  village  council, 
for  taxes  paid  under  protest,  is  a  condition  precedent  to  the 
bringing  of  the  suit.  It  will  be  presumed  that  the  council 
will  fairly  investigate  the  claim  and  refund  the  tax,  if  such 


591  ACTIONS  AT  LAW  §  411 

action  should  be  just34.  When  the  presentation  of  the  claim 
is  not  required  by  the  charter,  a  demand  for  repayment  is 
unnecessary35. 

§411.     Replevin. 

The  statute  provides  that  "no  replevin  shall  lie  for  any 
property  taken  by  virtue  of  any  warrant  for  the  collection 
of  any  tax,  assessment  or  fine  in  pursuance  of  any  statute  of 
this  state"36.  To  construe  this  provision  as  intended  to  apply 
only  to  cases  in  which  the  taxes  for  which  the  property  has 
been  taken  have  been  imposed  by  authority  of,  and  in  full 
compliance  with,  the  statute  authorizing  any  particular  taxes, 
so  as  to  render  it  a  valid  tax  in  pursuance  of  such  statute, 
would  be  to  make  the  question  of  the  maintainance  of  the 
replevin  depend,  in  all  cases,  upon  the  validity  of  the  tax, 
to  be  determined  upon  the  trial;  and  this  would  make  the 
statute  forbid  only  those  actions  of  replevin  which  must 
equally  have  failed  without  the  statute.  On  the  other  hand, 
to  construe  the  statute  as  applying  to  a  case  in  which  there 
is  no  statute  authority  for  the  assessment  and  collection  of 
any  tax  by  the  officers  who  may  have  undertaken  to  assess 
and  collect  one,  and  where  no  authority  to  impose  and  col- 
lect any  tax  under  any  statute  of  the  state,  or  to  a  case 
where  the  property  of  some  other  person  than  the  party 
taxed  has  been  seized,  would  be  to  extend  the  statute  to 
cases  which  do  not  come  within  its  spirit  or  intent.  This 
provision  must  therefore  be  construed  as  applying  only  to 
cases  in  which  a  valid  tax  might,  by  legal  possibility,  have 

34.     Louden  v.  East  Saginaw,  Crittcnden   v.    Mt.    Clemens,   86 

41  Mich.  18,  26;  Mead  v.   Lans-  Mich.  220;  Mason  v.  Muskegon. 

ing,    56    Mich.    601;    Detroit    v.  ill  Mich.  687. 

Mich.   Paving  Co.,  38  Mich.  358.  35.    Grand    Rapids    v.    Leon- 

In   Whitney  v.   Port  Huron,  88  ard.  40  Mich.  370. 

Mich.  268,  suit  is  held  not  prem-  36.     8     H.     S.     88318,     C     L. 

ature    when    brought    36    days  {10651. 
after     presentation     of     claim. 


§  411  THE  LAW  OF  TAXATION  592 

been  imposed  and  collected  by  regular  and  proper  proceed- 
ings under  some  statute  authority37.  The  statute  does  not 
apply  where  there  was  no  jurisdiction  to  assess  the  tax38; 
or  where  property  is  exempt  from  seizure,  as  goods  assigned 
for  the  benefit  of  creditors  for  the  first  ten  days  after  assign- 
ment39. This  action  will  not  lie  when  there  was  jurisdiction 
to  assess  the  tax40  ;  nor,can  the  statute  be  evaded  by  a  fraudu- 
lent conveyance  of  the  property  for  the  purposes  of  assess- 
ment only.  While. such  property  is  still  in  the  hands  of 
the  vendor,  it  may  be  levied  upon  and  replevin  will  not  lie41. 
If,  however,  it  is  in  the  hands  of  a  bona  fide  leasee,  he  may 
maintain  the  action42.  It  will  not  lie  where  the  locus  of 
assessment  is  correct  and  the  warrant  is  fair  upon  its  face43 ; 
as  where  a  parcel  of  land  owned  by  two  parties,  is  assessed 
to  one,  and  a  levy  is  made  upon  this  one  for  the  entire  tax44. 
It  will  not  lie  where  property  was  seized  upon  a  warrant 
issued  by  the  county  treasurer,  although  no  sworn  return  has 
been  made  as  a  basis  for  issuing  such  warrant,  which  would 
be  essential  in  an  action  by  the  treasurer  or  municipality45. 

37.  Forster     v.     Brown,     119      Mich.   424,   there   was   a  misno- 
Mich.    86,    89;    LeRoy    v.    East      mer    of    the    owner.      Boyce    v. 
Saginaw,  18  Mich.  233;  Travers      Stevens,  86  Mich.  549. 

v.    Inslee,   19    Mich.   98;    Hill   v.  41.     Gray  v.  Finn,  96  Mich.  62. 

Wright,  49   Mich.  229.     In  Me-  42.     Whitaker     v.    Fuller,    96 

Coy*v.  Anderson,  47  Mich.  502,  Mich.    141;   Tousey  v.    Post,   91 

and    Boyce    v.    Cutler,    70    Mich.  Mich.  631. 

539,  546,  it  is  held  that  if  the  43.  Hood  v.  Judkins,  61 
tax  was  laid  without  authority  Mich.  575;  Hill  v.  Graham,  72 
of  law  as  to  any  part  of  it,  as  Mich.  659;  West  Mich.  Lumber 
want  of  jurisdiction  of  the  Co.  v.'  Dean,  73  Mich.  459;  Rob- 
assessing  officer  to  levy  the  tax,  erts  v.  Denio,  118  Mich.  544; 
replevin  would  lie  to  regain  the  Forster  v.  brown,  119  Mich.  86; 
property  seized  for  the  tax.  Boyce  c.  Peterson,  84  Mich.  490. 

38.  Lantis   v.   Reithmiller,   95  44.     Scott  v.  Whelan,  96  Mich. 
Mich.   45,   a   fence   viewer's   tax  624. 

was  assessed  when  there  was  no  45.  Northwestern  Lumber  Co. 

jurisdiction  to  levy  such  a  tax.  v.   Scott,   123   Mich.   357;   Mich., 

39.  Lyons  v.  Harris,  52  Mich.  etc.    Power  Co.  v.  Atwood,  126 
272.  Mich.  661;  Boyce  v.  Stevens,  86 

40.  Hill  v.  Graham,  72  Mich.  Mich.  549. 
659.      In    Fletcher   v.    Post,   104 


ACTIONS  AT  LAW  §§  412,  413 

Replevin  is  the  proper  remedy  either  against  a  collector  or 
purchaser,  when  the  collector  seizes  the  property  of  a 
stranger  to  the  tax48. 

,<412.     Trover. 

A  warrant  that  is  fair  upon  its  face  will  protect  the  col- 
lector from  personal  responsibility,  as  a  wrong-doer,  against 
any  illegalities  claimed  to  have  been  committed  by  the  super- 
visor. An  excess  in  any  tax  does  not  make  the  warrant  void 
on  its  face,  else  an  excessive  tax  against  one  person  would 
make  the  entire  roll  void47.  This  action  will  lie,  however, 
for  cutting  timber  under  a  void  tax  title  where  the  posses- 
sion was  only  fugitive48. 

§413.     Trespass. 

Where  a  supervisor  delivers  a  roll  to  a  collector  con- 
taining taxes  for  collection  which  are  void  on  their  face, 
and  the  collector  enforces  payment  thereof,  an  action  of  tres- 
pass will  lie  against  the  supervisor  for  directing  the  col- 
lector, in  the  warrant,  to  enforce  such  taxes  as  void  on  their 
face49.  The  law  has  not  vested  in  the  supervisor  the  right 
to  impose  any  tax  except  as  previously  required  by  some 
other  competent  authority,  and  even  where  the  proper 
authorities  have  determined  upon  the  raising  of  the  several 
taxes,  he  cannot  take  as  his  basis  for  the  apportionment  any 
list  of  roll  which  has  not  been  submitted  to,  and  acted  upon, 
by  the  board  of  supervisors,  and  corrected  and  if  necessary, 
equalized  by  them ;  and  the  evidence  of  their  action  must  be 

46.  Canfield    Lumber    Co.    v.         48.       Moret     v.     Mason,     10« 
Manistee   Twp.,    100    Mich.   4««.      Mich.  340. 

47.  Bylcs     v.     Genung,     5*          49.     Atwell  v.  Zeliff,  8«  Mich. 
Mich.  504;  Curtiss  v.  Witt,  110      118;    Smith     v.     Crittenden,     1« 
Mich.    131;    Bird   v.    Perkins,  33      Mich.  158. 

Mich.  28. 
(88) 


§  413  THE  LAW  OF  TAXATION  594 

certified  by  their  chairman.  The  collector's  roll  is  but  a  copy 
of  the  original  roll  and  need  not  contain  the  certificate  from 
the  board.  The  production,  therefore,  of  the  collectors  roll, 
with  the  warrant,  is  not,  as  to  the  supervisor, '  prima  facie 
evidence  in  an  action  of  trespass,  of  the  right  of  the  collector 
to  make  a  levy.  The  supervisor  must,  affirmatively  show 
his  right  to  make  and  attach  the  warrant  to  the  collectors 
roll,  which  he  can  do  by  producing  the  original  certificate  to 
himself  from  the  clerk  of  the  board  of  supervisors.  The 
supervisor  must  therefore  show  that  the  original  roll  came 
into  his  hands  from  the  board  of  supervisors,  that  the  state 
and  county  taxes  were  properly  certified  to  him  by  the  county 
clerk,  and  that  the  township  taxes  had  been  certified  by  the 
township  clerk.  The  supervisor,  however,  will  not  be  liable 
because  of  an  erroneous  description  upon  the  roll50.  Trespass 
will  also  lie  against  the  fugitive  acts  of  a  person  holding  a 
void  tax  title,  such  acts  not  constituting  possession  in  good 
faith51.  The  right  of  action  for  a  trespass  committed  upon 
state  tax  lands,  before  the  state  has  sold  its  title,  remains 
in  the  state  after  such  sale52.  After  justifying  as  commis- 
sioner and  contractors,  it  is  proper  to  allow  an  amendment 
in  the  circuit  court,  where  the  suit  was  commenced  in  justice 
court,  by  stating  that  the  parties  entered  the  premises  under 
a  license  from  the  owner53.  Where  the  contractors  exceed 
the  limits  of  the  right  of  way  in  constructing  the  drain,  they 
are  trespassers54.  But  although,  on  a  petition  to  clean  out, 
the  contractor  makes  the  drain  larger  than  the  specifications, 
this  act  of  trespass  would  not  vitiate  the  drain  proceedings 

50.  Clark  v.  Axford,  5  Mich.      136   Mich.   128. 

182,  187.  53.     Hopkins     v.     Briggs,    41 

51.  Safford  v.  Basto,  4  Mich.      Mich.  175. 

406.  54.     Clark   v.   Wiles,   54   Mich. 

52.  BlaKe     v.     Groucin,     141      323. 
Mich.   104;   Hickey  v.   Rutledge, 


595  ACTIONS  AT  LAW  §  414 

or  make  the  commissioner  liable55.  Where  a  drain  is  illegally 
constructed  through  premises,  the  measure  of  damage  is  the 
loss  of  the  use  of  the  land  and  the  cost  of  putting  it  in  as 
good  condition  as  before.  The  jury  cannot  consider  the 
benefits  derived  from  the  illegal  construction  of  the  drain59. 

§414.     Mandamus  to  Pay  Money. 

The  school  board,  under  the  statute,  may  direct  where  the 
school  money  shall  be  deposited;  and  where  the  treasurer 
refuses  to  so  deposit  the  funds,  a  mandamus  will  issue  to 
compel  him  to  do  so.  It  is  no  defense  to  such  an  action  that 
the  monies  have  not  been  formally  separated  because  they 
are  clearly  distinguishable  on  the  tax  rolls.  This  action  will 
lie  at  the  instance  of  the  school  board,  but  not  of  the  deposi- 
tory57. It  is  the  proper  remedy  to  compel  the  payment  of 
money  from  one  township  to  another,  where  a  township  was 
divided  and  the  levy  was  made  by  the  old  township.  As- 
sumpsit  will  not  lie58.  But  unless  the  amount  is  liquidated 
and  ascertained,  mandamus  will  not  lie  but  assumpsit  may  be 
brought.  Where  there  has  been  no  statement  of  account 
between  a  township  and  county,  and  there  may  be  claims 
both  ways,  a  mandamus  will  not  issue  until  the  amount  has 
been  fixed  by  the  judgment  of  the  court50.  Yet  the  court 
may  refer  disputed  accounts  to  a  referee  upon  an  applica- 
tion for  a  mandamus  to  determine  the  facts  as  to  the  account 
between  a  township  and  a  county60.  If  the  controversy  can 
be  determined  from  the  petition  and  answer,  the  court,  by 

55.  Angell   v.    Cortright,    111  58.    Comins   Twp.   v.    Harris- 
Mich.  223.  ville  Twp.,  45  Mich.  441. 

56.  Walters   v.    Chamberlain,  59.    Gumming   Twp.   v.   Oge- 
65    Mich.    333.  maw  Co.,  93  Mich.  315. 

57.  See  chapter  upon  account-         60.    Haines  v.  Saginaw  Co.,  87 
ing,   §§166-179;    Sec   res   judicata.      Mich.    237:    Haines    v.    Saginaw 
§456,    post;    Board    of    Education      Co..  99  Mich.  38. 

v.  Runnels,  57  Mich.  46. 


§  414  THE  LAW  OF  TAXATION  596 

mandamus,  will  correct  either  a  mistake  of  law  or  of  facts61. 
Where  the  county,  by  mistake,  pays  an  excess  of  money  to 
the  state  it  cannot  thereafter  set  off  this  excess  of  payment 
against  a  later  valid  claim  of  the  state.  Although  this  may 
be  a  just  claim  on  the  part  of  the  county,  it  can  amount  to 
no  more  than  a  claim  against  the  state  for  money  paid  to 
the  use  and  benefit  of  the  county  which  cannot  be  made  the 
subject  of  an  action  against  the  state,  as  a  state  cannot  be 
sued  without  its  consent62.  A  city  treasurer,  in  his  own 
name,  may  compel  the  county  treasurer  to  refund  to  him 
monies  paid  over  by  mistake,  and  really  belonging  to  the 
city63.  A  county  will  also  be  compelled  to  pay  to  a  town- 
ship detached  from  it  such  sum  as  may  be  owing  to  it;  and 
the  county  treasurer's  books  will  be  presumed  to  show  the 
correct  balance64.  This  is  a  discretionary  writ,  and  will  not 
be  awarded  where  it  does  not  appeal  to  a  sense  of  justice  nor 
to  the  proper  idea  of  the  duty  of  the  property  owner  to  the 
state,  which  makes  his  person  and  property  secure.  Thus, 
where  a  property  owner  held  a  certificate  of  purchase  of 
lands  for  several  years,  and  meantime  permitted  his  interest 
in  such  land  to  be  assessed  as  real  estate  instead  of  personal 
property,  the  land  not  otherwise  being  assessed,  the  writ  to 
compel  a  refunding  to  him  of  the  taxes  so  paid  was  de- 
nied66. It  will  lie  to  compel  a  school  district  to  issue  a  war- 
rant for  work  upon  a  school  building  in  pursuance  of  the 
vote  of  the  electors66.  Where  the  payment  of  money  is 

61.  Auditor   General  v.  Sagi-      Ambler  v.   Auditor   General,   38 
naw  Co.,  62  Mich.  579;  Auditor      Mich.  746. 

General  v.  Ottawa  Co.,  76  Mich.  63.    Webster  v.   Wheeler,  119 

295;    Auditor    General    v.    Shia-  Mich.  601. 

wassee  Co.,  74  Mich.  536;  Audi-  64.    Roscommon  Twp.  v.    Mid- 
tor   General   v.   Monroe   Co.,  36  land  Co.,  49  Mich.  454. 
Mich.  70.  65.     MacKinnon     v.     Auditor 

62.  See  Actions  against  state,  General,  130  Mich.  553,  556. 
§407,    supra;    Auditor   General   v.  66.   Banhagel  v.  School  Board, 
Bay    Co.,    106    Mich.    662,    664;  134  Mich.  455. 


ACTIONS  AT  LAW  §  415 

sought  to  be  enforced  by  a  private  individual,  the  statute 
of  limitations  may  be  pleaded  in  answer  thereto*7. 

§415.     Mandamus.    As  to  Other  Duties. 

It  is  the  proper  remedy  to  compel  the  spreading  of  a  tax68 ; 
and  to  compel  a  township  to  make  good  to  the  county  the 
loss  sustained  by  a  defaulting  township  treasurer89.  It  is 
the  proper  remedy  to  compel  the  treasurer  to  sell  delinquent 
tax  lands.  He  cannot  refuse  so  to  do  because  he  thinks  the 
taxes  are  illegal;  only  a  tax  payer  can  raise  that  objection70. 
It  lies  to  compel  a  township  clerk  to  issue  a  certificate  for 
the  levy  of  a  tax  to  satisfy  a  judgment71.  It  lies  to  compel 
the  auditor  general  to  issue  a  certificate  of  error72,  or  to 
issue  a  deed73.  It  will  not  lie  to  compel  a  further  assessment 
to  pay  bonds  until  after  the  sale  of  delinquent  tax  lands 
upon  which  the  first  assessment  was  made74.  It  is  a  dis- 
cretionary writ  and  may  be  refused  where  the  relator  has 
slept  upon  his  rights  and  he  will  not  be  compelled  to  cancel 
a  void  tax  deed  and  where  the  interest  of  third  parties  have 

67.  McRae    v.    Auditor    Gen-  71.     Courtwright    v.     Brooks 
era),   146   Mich.   594;   Wilkinson  Twp.,    54    Mich.    182;    Balch    v. 
v.    Auditor    General,    147    Mich.  Detroit,   109   Mich.   253;   Bogert 
13.  v.  Circuit  Judge,  118  Mich.  457. 

68.  Attorney  General  v.  Board  72.    Jackson  v.  County  Treas- 
of  Supervisors  of  St.  Clair  Co.,  urer,    117    Mich.   305.     Hubbard 
30  Mich.  388.     In  this  case  the  v.    Auditor   General,    120    Mich, 
board  was  ordered  to  spread  a  505;  Cockburn  v.  Auditor  Gen- 
tax   due   the   state.     Ramsey  v.  eral,  120  Mich.  643;  Hoffman  v. 
Everet    Twp.    Clerk,    52    Mich.  Auditor  General,  136  Mich.  689. 
344.      In    Smith    v.     Jones,     136  It   will   not   lie  to  compel   issu- 
Mich.   532,  it  issued   to  compel  ing  a  certificate  of  error  where 
the     supervisor     to     spread     a  the    same    tax   is   involved    in   a 
school    tax   upon   the   township  chancery    proceeding;    Swift    v. 
at   large    for   a   sum   the    town  Auditor  General,  151  Mich.  622. 
treasurer   had  embezzled.  73.   Cockburn  v.  Auditor  Gen- 

69.  Hart   v.    Oceana   Co.,   44  eral,  120  Mich.  643. 

Mich.  417.  74.    Wayne  Co.  Savings  Bank 

70.  Hudson    v.    Whitney,    53      v.   Roscommon  Twp.,  97  Mich. 
Mich.  158.  630. 


§  416  THE  LAW  OF  TAXATION  598 

intervened75.  It  being  a  discretionary  writ,  issued  only  in  the 
furtherance  of  justice,  it  was  refused  upon  an  application 
to  compel  the  auditor  general  to  cancel  a  sale  where  only  a 
portion  of  the  land  was  locally  assessable,  but  there  had  been 
no  offer  to  pay  any  portion  of  the  tax76. 

§416.     Mandamus.    To  Review  Action  of  Court. 

This  writ  will  be  granted  to  compel  a  circuit  judge  to 
issue  an  injunction  when  it  clearly  appears  that  his  refusal 
so  to  do  was  based  upon  an  erroneous  opinion  of  the  law 
applicable.  While  the  supreme  court  hesitates  to  review  the 
action  of  the  trial  court  in  matters  of  direction,  it  will  do  so 
if  necessary  that  justice  may  be  done77.  It  will  likewise  be 
granted  to  dissolve  an  injunction  where  the  dispute  is  one 
of  law  merely78.  It  will  be  granted  to  compel  the  issuing 
of  an  injunction  to  restrain  waste  upon  wild  lands  before 
the  taxes  are  paid79.  Mandamus  will  not  lie  to  compel  a 
circuit  judge  to  review  a  decree  ordering  the  sale  of  lands 
for  an  alleged  illegal  tax.  The  remedy  by  appeal  is  ade- 
quate80. It  will  not  lie  to  dissolve  an  injunction  upon  the 
ground  that  the  bill  is  multifarious,  as  this  is  a  mere  formal 
objection81. 


75.  Cook  v.  Auditor  General,  from  submitting  the  question  of 
124  Mich.  430.  a  loan  to  a  vote  of  the  people; 

76.  Gd.    Rapids    I.    R.    Co.   v.  Van    Norman   v.    Circuit  Judge, 
Auditor    General,    144   Mich.    77.  45    Mich.    204.    Ionia,    etc.,    Ins. 

77.  Dodge     v.     Circuit     Judge,  Co.  v.  Circuit  Judge,  100  Mich. 
118    Mich.    189;    Tawas,    etc.,   v.  606. 

Circuit    Judge,     44     Mich.     479;  79.     Rossman    v.    Adams,    91 

Lansing  Lumber   Co.  v.   Circuit  Mich.    69,    73. 

Judge,  108   Mich.  305.  80.     Wiley  v.  Beach,  86  Mich. 

78.  Thomas    v.    Kent    Judge,  381. 

116  Mich.  106,  where  an  injunc-  81.     River    Rouge    v.    Judge, 

tion  had  been  allowed  restrain-  147    Mich.   204. 
ing    the    board    of    supervisors 


ACTIONS  AT  LAW  U7,  418,  4  HI 

§417.     Mandamus.    In  Re  Drain  Proceedings. 

Under  the  early  holdings  of  the  court,  the  supervisor  could 
set  up  the  illegality  of  the  drain  proceedings  as  a  defense  for 
not  spreading  the  drain  tax82.  This  was  permitted,  although 
the  drain  had  been  constructed,  and  a  part  of  the  tax,  in 
another  township,  paid  in,  where  the  defects  were  jurisdic- 
tional83.  The  general  rule,  however,  is  that  the  supervisor 
cannot  set  up  the  illegalities  of  the  proceedings  as  a  justifica- 
tion for  not  spreading  the  drain  tax84.  Mandamus  will  lie 
to  compel  the  lower  court  to  retax  costs.  The  lower  court 
will  be  bound  by  the  objections  made  before  the  court;  others 
cannot  be  raised85. 

£418.     Mandamus.     In  Re  Special  Assessments. 

It  will  lie  to  compel  a  village  treasurer  to  sell  lands  de- 
linquent for  special  assessments,  if  the  proceedings  are  suf- 
ficiently fair  to  protect  ministerial  action,  the  work  having 
been  done  and  part  of  the  tax  paid86.  It  will  not  lie  to  com- 
pel the  payments  of  warrants  pending  a  suit  to  establish  the 
legality  of  such  warrants  at  the  instance  of  a  tax  payer87. 

$419.     Ejectment. 

A  decree  entered  in  the  circuit  court  in  chancery  ordering 
the  sale  of  lands  for  delinquent  taxes  is  conclusive,  and  can- 
not be  assailed  in  an  action  of  ejectment  except  to  show  lack 

82.  Nugent  v.  Erb,  90  Mich.  lage   v.   Whitney,  53   Mich.   158. 
278.  86.     Patterson      v.      Calhoun 

83.  Hubble   v.   Robertson,  65  Judge,   144    Mich.   416;   Schmidt 
Mich.  538.  v.  Circuit  Judge,  138  Mich.  452, 

84.  See        Supervisor,        5287,  as  to  compelling  a  judge  to  act. 
supra.     Lambach     v.     O'Meara,  86.     Hudson  Village  v.  Whit- 
107  Mich.  29,  30:  Smyth  v.  Tit-  ney,  53   Mich.   158. 

comb,  31  Me.  286;  People  v.  87.  Detroit,  etc.,  Plank  Road 
Halsey,  53  Barb.  547;  Waldron  Co.  v.  Highland  Park.  142  Mich. 
v.  Lee,  5  Pick  328;  Hudson  Vil-  366. 


§  419  THE  LAW  OF  TAXATION  600 

of  jurisdiction  of  the  equity  court88.  This  lack  of  jurisdic- 
tion must  appear  upon  the  face  of  the  record;  it  cannot  be 
shown  otherwise  in  a  collateral  suit.  The  legality  of  the 
taxes  cannot  be  inquired  into89.  While  the  jurisdiction  of 
the  court  entering  the  decree  cannot  be  attacked  except  as 
above  stated,  yet,  a  certificate  of  error  issued  by  the  auditor 
general  cancelling  the  deed  in  question,  is  admissible.  In 
other  words,  the  facts  which  would  entitle  a  defendant  to  a 
certificate  of  error  cannot  be  shown  to  defeat  an  action  of 
ejectment;  but  the  certificate  must  first  be  obtained  and  then 
introduced  in  evidence90.  The  records  of  a  court  of  equity 
are  of  such  pre-eminent  authority  that  their  truth  is  not  to 
be  called  in  question  collaterally.  For  it  is  a  settled  rule  and 
maxim  that  nothing  shall  be  averred  against  a  record,  nor 
shall  any  plea,  or  even  proof,  be  admitted  to  the  contrary. 
And  if  the  existence  of  a  record  be  denied,  it  shall  be  tried 
by  nothing  but  itself;  that  is,  upon  bare  inspection  whether 
there  be  any  such  record  or  no;  else  there  must  be  no  end  of 
disputes.  Therefore,  in  an  action  of  ejectment,  it  cannot 
be  shown  that  the  judge  signed  the  decree  before  the  amounts 
were  filled  in,  though  if  such  fact  were  made  to  appear  in 
the  original  proceedings  either  by  petition  or  bill  of  review,  it 
would  be  held  a  fatal  defect91.  One  in  possession  of  prem 
ises  under  a  land  contract  with  an  obligation  to  pay  the 
taxes,  cannot  let  the  taxes  go  by  default,  and  set  up  a  tax 
title  so  acquired  by  a  third  person,  against  the  owner  of  the 

88.  See    Decree,    §390,    supra.  Wood,  117  Mich.  174;  Kneeland 
Cole   y.    Shelp,   98    Mich    56.     In  v.  Hyman,  118  Mich.  56;  North- 
re   Wiley,   89    Mich.    58;    Hilton  rup  v.   Maneka,   126   Mich.  550; 
v.  Dumphey,  113  Mich.  241.  Nowlen  v.  Hall,  128  Mich.  274, 

89.  Watts      v.       Bublitz,      99  278. 

Mich.    586.  91.     See     Certificate     of     sale, 

90.  See    Certificate    of    error,      §197,  supra.  Boardman  v.  Booze- 
§397.    supra.    Wood   v.    Bigelow,      winkle,  121   Mich.  320. 

115     Mich.     123;     Kneeland     v. 


601  ACTIONS  AT  LAW  §  420 

premises,  in  an  action  of  ejectment'2.  Neither  can  the 
holder  of  a  certificate  of  sale  which  entitles  him  to  a  tax  deed, 
set  up  such  certificate  as  a  defense.  No  title  passes  until  the 
deed  issues93.  A  mortgagee,  not  in  possession,  has  only  a 
lien  upon,  but  no  title  to  the  mortgaged  premises,  and  no 
such  title  as  gives  a  plaintiff  in  ejectment  a  right  to  make 
him  a  party  defendant94.  The  action  will  lie  on  the  record- 
ing of  the  tax  deed,  as  this  act  is  construed  to  indicate  a  hos- 
tile claim  of  title95.  Ejectment  will  lie  against  the  occupant 
of  state  homestead  land  where  the  land  was  bid  into  the 
state  at  a  void  tax  sale96. 

§420.     Recovery  for  Improvements  and  Taxes. 

The  statute  provides  that  when  in  any  action  of  eject- 
ment, a  person  whose  title  is  defeated,  but  who  has  been  in 
possession  in  good  faith,  or  under  color  of  title  for  six 
years,  may  recover  the  value  of  the  permanent  improve- 
ments. The  identity  of  the  property  occupied  with  that 
described  in  the  tax  deed  must  be  established  by  rules  of 
law.  If  the  description  in  the  tax  deed  does  not  correctly 
describe  the  property,  such  description  cannot  be  supple- 
mented by  parol  proof  as  to  identity,  and  the  claim  for  im- 
provements will  fail98.  The  statute  also  provides  for  a  lien 
for  improvements  upon  the  lands  when  any  tax  title  pur- 
chaser is  dispossessed,  and  permits  the  enforcing  of  this 

92.  Hubbard      v.      Sheppard.  miller    v.    Hathaway.    60    Mich. 
117  Mich.  25.  391;     Murray     v.     Hudson,     65 

93.  See   No.  91,  supra.  Mich.   670,  674. 

94.  Dawson     v.     Peter,     119          96.     Platz   v.    Englehardt,  138 
Mich.  274,  281.  Mich.    485;     Morse     v.     Auditor 

95.  Hoyt     v.     Southard,     58  General,  143  Mich.  610;  Meagh- 
Mich.  432;  Goodman  v.   Nester,  er  v.  Dumas,  143  Mich.  639. 

«4  Mich.  062;  Tillotson  v.  Web-         98.     King  v.  Potter,  18  Mich., 
ber,  96   Mich.  144;  Anderson  v.      134. 
Courtright,  47  Mich.  161;  Heins- 


THE  LAW  OF  TAXATION  602 


lien  in  equity,  where  no  other  provision  is  made.  This  lien 
does  not  extend  to  taxes  paid,  however".  A  claim  for  im- 
provements can  only  be  made  by  some  person  having  pos- 
session under  claim  of  legal  right.  It  cannot  be  made  by  a 
mere  licensee  whose  right  of  entry  is  liable  to  be  revoked  at 
any  time1,  nor  can  it  be  made  after  one  trial  had2.  The  re- 
payment of  all  taxes  paid  by  a  defendant  in  ejectment  is  a 
condition  precedent  to  entering  judgment,  where  the  statute 
so  provides3.  Otherwise,  this  lien  for  taxes  is  enforced  in 
equity4.  A  recovery  for  improvement  was  allowed  where 
the  occupant  was  dispossessed  of  state  homestead  land  by 
the  original  owner5. 

§421.     Improvements.     Claim  of  Property. 

In  order  for  the  defeated  tax  title  holder  to  make  a  claim 
for  improvements,  it  must  appear  that  the  claimant  was  in 
possession  under  a  hostile  and  adverse  holding  brought  home 
to  the  owners  of  the  fee.  The  recording  of  the  tax  deed 
alone  may  not  be  sufficient  where  the  owners  are  in  the  occu- 
pancy of  the  premises  with  the  claimant6.  Where  a  tax 
title  holder  enters  the  property  without  giving  the  notice 


99.  See  Lien  for  taxes,  §143,  Mich.  569;  Ellsworth  v.  Free- 
supra.  Croskery  v.  Busch,  116  man,  43  Mich.  488;  Tillotson  v. 
Mich.  288;  Connecticut,  etc.,  Circuit  Judge,  97  Mich.  585,  588. 
Ins.  Co.,  v.  Wood,  115  Mich.  In  Robbins  v.  Barron,  34  Mich. 
444,  453.  517,  it  is  held  that  the  money 

1.  Buell    v.    Irwin,    24    Mich.  paid  for  the  last  title  takes  pre- 
145;  Newaygo  Mfg.  Co.  v.  Eich-  cedence   over   earlier   sales.      In 
tenaw,  81  Mich.  416.  Stockle     v.     Silsbee,     41     Mich. 

2.  Van    Den    Brooks   v.    Cor-  615,  622,  it  is  held  that  only  le- 
reon,  48  Mich.  283.  gal  taxes  paid  becomes  a  lien. 

3.  Beard      v.      Sharrick,      67  5.     Platz    v.    Englehardt,    138 
Mich.  321;  H.  S.  §1208;  Sinclair  Mich.  485. 

v.  Learned,  51  Mich.  335.  6.     Paldi    v.    Paldi,    84    Mich. 

4.  Act    No.    169    of    Laws    of  346,   356. 
1869,     Weimer     v.     Porter,     42 


603  ACTIONS  AT  LAW  §  422 

required  by  statute,  he  cannot  recover  for  the  improvements 
he  may  have  made7. 

§422.     Certiorari.    In  Re  General  Tax. 

This  action  will  not  lie  generally  to  review  a  tax  proceed- 
ing, unless  specially  provided  by  statute,  because  in  it  the 
court  cannot  exercise  original  jurisdiction  for  the  purpose 
of  curing  substantial  defects  wherever  it  shall  be  found  prac- 
ticable. It  is  very  evident  that  the  court  cannot  exercise  this 
jurisdiction  on  certiorari ;  and  that  the  purpose  of  a  healing 
statute  must  be  defeated  in  many  cases  where  the  proceed- 
ings are  brought  before  the  court  simply  for  reversal  of 
affirmance.  The  court  does  not  hold  that  the  statute  takes 
away  jurisdiction;  but  in  the  exercise  of  its  discretion,  and 
in  order  that  effect  may  be  given  to  the  legislative  intent 
wherever  it  shall  be  found  practicable,  it  is  proper  to  decline 
to  review  proceedings  in  this  way.  It  will  be  open  to  all 
parties  claiming  to  be  aggrieved  to  seek  redress  by  some  ap 
propriate  proceeding  in  the  circuit  court ;  and  it  will  gener- 
ally be  more  conducive  to  substantial  justice  that  they  shall 
so  do8.  The  writ  is  not  a  flexible  remedy ;  all  the  court  can 
do  is  to  quash,  or  refuse  to  quash  the  proceedings,  unless 
there  is  statutory  authority  to  the  contrary.  If  the  com- 
plaining party  were  to  resort  to  a  suit  in  equity,  he  might  be 
required,  as  a  condition  to  any  relief,  to  do  what  under  the 
circumstances  appeared  to  be  just;  and  if  he  is  injured  only 
to  the  extent  of  a  part  of  his  taxes,  he  will  be  decreed  to  pay 

7.  Cook     Land     Co.,     etc.     v  88,  saying  that  this  writ  is  sup- 
McDonald.  15  L.  N.  953;  Corn-  posed  to  act  as  a  stay  of  pro- 
gan  v.  Hinkley,  125  Mich.  125.  ceedings;     Hudson     Village     v. 

8.  Tucker  v.  Drain  Commis-  Whitney,  53  Mich.  158;  See  Cer- 
sioner,    50    Mich.    56;    Dietz    v.  tiorari     on     drain     proceedings, 
Frazer.  50  Mich.  227.    Whitbeck  5424  post. 

v.  Hudson  Village,  50  Mich.  86, 


§  423  THE  LAW  OF  TAXATION  604 

the  remainder.  He  may  also  be  required  to  deposit  the 
amount  of  the  tax,  or  to  give  security  for  it,  before  the  pro- 
ceedings of  the  officer  are  stayed;  and  the  court  has  ample 
power  to  do  complete  justice  between  the  party  complaining 
and  the  public  where  all  the  facts  are  before  it.  But  there 
is  nothing  so  flexible  in  the  remedy  by  certiorari ;  and  under 
the  operation  of  its  rigid  rules,  if  it  is  made  use  of  in  tax 
cases,  the  complaining  party  may  perhaps  escape  a  public 
burden  where  justice  may  require  that  he  should  bear  it; 
and  even  if  he  were  justly  relieved  from  a  wrongful  burden, 
the  mischief  introduced  by  his  writ  would  be  likely  to  be 
greater  than  those  it  would  cure;  and  public  improvements 
which  were  generally  desired,  might  be  stopped  on  the  com- 
plaint of  a  single  party  concerned  whose  injury,  if  any,  may 
be  insignificant.  This  writ  will  lie,  however,  to  review  the 
apportionment  of  monies  between  counties,  where  a  new 
county  has  been  set  off  from  an  old  county9. 

§  423.     Certiorari  In  Re  Special  Assessment. 

The  court  does  not  favor  certiorari  in  these  cases  to  re- 
view tax  proceedings.  The  use  of  this  writ  in  tax  cases 
may  be  very  troublesome.  It  may  be  allowed  even  by  a  cir- 
cuit court  commissioner ;  its  issuance  strays  proceedings,  and 
endless  confusion  may  result.  There  may  be  difficulty  in 
obtaining  a  full  return;  and  the  return  is  binding.  The 
rights  of  the  parties  must  be  settled  by  rigid  rules,  whereas 
equity  often  in  justice  requires  flexible  rules.  Drain  eases 
are  somewhat  different  in  that  the  proceedings  often  seek 
to  appropriate  part  of  the  petitioners  property.  Moreover, 
the  legislature  has  seen  fit  to  provide  that  remedy  in  drain 
cases10. 

9.     Alcona  County  v.   White,          10.     Whitbeck  v.  Hudson  Vil- 
54  Mich.  503.  lage,   50   Mich.  86. 


ACTIONS  AT  LAW  §424 

§424.     Certiorari.     In  Re  Drain  Proceedings. 

The  common  law  writ  of  certiorari  lies  when  the  defects 
are  jurisdictional11 ;  but  it  will  not  lie  unless  it  was  an  im- 
possibility to  take  out  the  statutory  writ  in  the  ten  days  pro- 
vided by  statute12.  The  proceedings  upon  each  drain  form  a 
separate  action,  and  must  be  reviewed  separately.  The  pro- 
ceedings upon  two  drains  cannot  be  reviewed  upon  one 
writ13;  nor  will  the  court  exercise  original  jurisdiction14. 
The  return  to  the  writ  is  conclusive15;  and  objections  not 
stated  in  the  petition  will  not  be  noticed18.  Certiorari  is  not 
the  only  remedy  for  jurisdictional  defects;  a  bill  in  equity 
will  also  lie17.  When  the  writ  is  brought  to  review  the 
proceedings  of  a  drain  in  two  counties,  both  commissioners 
should  be  made  parties18.  Where,  however,  the  writ  was  to 
review  the  appeal  to  the  township  board  on  an  assessment, 
the  commissioner  of  the  other  county  is  not  a  necessary 
party19.  A  party  injured  by  the  determination  of  the  pro- 
bate court  because  of  alleged  lack  of  jurisdiction,  should 
take  the  statutory  writ  and  not  file  a  bill  inequity20.  Where 
no  fraud  is  shown  and  the  parties  have  notice  of  the  pro- 
ceedings certiorari  is  the  only  remedy21.  A  person  who  has 

11.  C.    L.    84346;     Brady    v.      Mich.  659. 

Hay  ward,    114    Mich.    326,    328;  1«.    Clark   v.    Drain   Com'r,   50 

Null    v.    Zicrle,    52    Mich.    540;  Mich.     618;     Smith     v.     Bd.     of 

Bixby    v.    Goss,    54    Mich.    551;  Sup'rs,   115   Mich.  202. 

Whiteford     Twp.     v.      Probate  17.     Tomlin  v.   Newcomb,  70 

Judge,  53  Mich.  130,  134.  Mich.  358. 

12.  Blumfield  Twp.  v.  Brown,  18.    Duflo    v.     Lillibridge,     114 
130  Mich.  504.  Mich.  350. 

13.  Dickinson  v.  Van  Worm-  19.     Thomas  v.  Walker  Twp. 
er,  39  Mich.  141.  116  Mich.  597. 

14.  Tucker     v.     Parker,     50         20.    Strack  v.  Miller,  10  L,  N. 
Mich.    5;    Dietz    v.    Frazer,    50     460,  134  Mich.  311.    Where  a  Mil 
Mich.  227.  is  filed,  demurrer  will   lie,  Cr»n- 

15.  People     v.      Leavitt,     41      dall  v.  McElheny,  146  Mich.  191; 
Mich.    470;   Smith    v.    Board   of     Auditor  General  v.  Bolt.  147  Mich. 
Supervisors,      115      Mich.      202;      283. 

Hackett    v.    Brown,    128    Mich.         21.     Hackett     v.     Brown,     1*8 
141;     Patterson     v.     Mead,     138      Mich.  141. 


§  425  THE  LAW  OF  TAXATION  606 

purchased  land  pending  condemnation  proceedings  with  a 
knowledge  of  the  same,  and  who  has  neglected  to  notify  the 
commissioner  of  his  interest,  cannot  thereafter  intervene, 
and  is  not  entitled  to  this  writ22.  Where  a  petition  was  filed 
Nov.  26  and  noticed  for  hearing  on  Dec.  1,  it  was  sufficient 
though  a  holiday  intervened23. 

§425.     Time  of  Bringing  Writ  of  Certiorari. 

The  common  law  writ  lies  for  jurisdictional  defects,  as 
before  pointed  out,  and  should  be  brought  as  soon  as  pos- 
sible after  knowledge  of  the  facts.  Ten  months  is  held  not 
an  unreasonable  delay24.  A  plaintiff  may  sue  out  the  writ 
as  soon  as  he  discovers  his  damage,  which  might  be  some 
time  after  the  proceedings  had;  as  where  a  drain  lowered  a 
lake,  when  it  had  been  represented  that  it  would  not25.  The 
statutory  certiorari  must  be  brought  within  ten  days  after 
the  filing  of  the  final  order  with  the  county  clerk26.  Where 
the  contestants  did  not  seek  this  remedy,  but  delayed  over 
four  months  and  then  filed  a  bill  in  equity,  they  were  held 
guilty  of  laches  which  barred  their  right  to  review  defects 
either  in  equity  or  by  certiorari27.  At  common  law  the  writ 
is  not  one  of  right  but  rests  in  the  sound  discretion  of  the 
court,  to  be  allowed  or  not,  as  best  promotes  the  ends  of  jus- 
tice. One  who  keeps  silent  to  the  injury  of  the  public  and 
his  neighbors  might  well  be  estopped  by  his  own  inaction. 

22.  Clinton   Twp.   v.  Leachout,  v.  McCormick,  150  Mich.  232. 
150  Mich.   124.  27.     Swan       Creek       Twp.       v. 

23.  Lichley      v.      Bishop,      150  Brown,  130  Mich.  382,  335;  Horn 
Mich.    256.  v.     Livingston     Co.     Board,     135 

24.  Harbaugh     v.     Martin,     30  Mich.  553 ;  Crandall  v.  McElheny, 
Mich.  234.  146    Mich.    191;    Auditor   General 

25.  Wright  v.  Drain  Com'r,  44  v.    Crane,    152    Mich.   94,    holding 
Mich.   557;    Burnett  v.   Scully,   50  that   the  non-filing  of  the  papers 
Mich.  374.  did  not  suspend  the  remedy. 

26.  C.   L.    §4346;    Grandchamp 


ACTIONS  AT  LAW 

His  conduct  is  opposed  to  natural  justice.  To  avoid  such 
loss  to  the  public  and  injury  to  individuals,  the  legislature 
has  aimed  to  settle  finally  and  forever  all  questions  relating 
to  the  establishment  of  drains,  before  the  distinct  branch  of 
construction  and  taxation  should  be  entered  upon.  The  pur- 
pose is  wise  and  beneficial  and  the  law  should  be  applied  as 
effectually  as  possible28.  When  the  final  order  is  not  signed, 
the  common  law  writ  of  certiorari  may  be  brought  at  any 
time  thereafter  though  the  drain  may  be  partially  con- 
structed29. The  statutory  provision  requiring  the  writ  to 
be  issued  within  two  years  was  not  intended  to,  and  did  not, 
take  away  the  discretionary  power  of  the  court.  An  unex- 
plained, unreasonable  delay  in  suing  out  the  writ  is  fatal80. 
The  statutory  provision  as  to  bringing  certiorari  within  ten 
days  after  the  final  order  is  filed,  §  3,  Chap.  5,  Act  272  of 
Public  Acts  of  1890,  does  not  apply  to  defects  which  did  not 
occur  until  after  that  time31.  Where  a  party  has  neglected 
to  take  the  statutory  remedies  in  the  absence  of  fraud,  a  bill 
will  not  lie  except  for  defects  occtiring  thereafter.  Where  a 
party  does  not  appear  before  the  board  of  review  he  cannot 
thereafter  complain  of  his  assessment,  or  the  afct  that  lands 
benefited  were  omitted.  The  fact  that  the  assessment  roll  was 
not  signed  becomes  immaterial  after  the  drain  is  con- 
structed82. The  fact  that  a  petition  is  defective  does  not 
justify  equitable  interference;  but  where  a  non-resident  has 
no  actual  notice,  and  the  notice  as  published  is  not  in  accord- 
ance with  the  statute  a  bill  will  lie88. 

28.  Moore    v.     Mclntyre,    110  Mich.    544;    Chandler   v.    Heiscr. 
Mich.  237,  239.  15  L.  N.  333,           Mich. 

29.  Loree  v.  Smith,  100  Mich.  32.    Jones  v.  Gable,   150  Mich. 
252,  255.  30;     Grandschamp     v.     McCor- 

30.  In   re  Lantis,  9   Mich.  323.  mick,  150  Mich.  232:  McElheney 
The  delay  was  11  months.    Bres-  v.  Drain  Com'r.,  146  Mich.  191. 
ler  v.  Drain  Com'r,  46  Mich.  335.  33.    Hoffman     v.      Shell,      151 
The  delay  was  8  months.  Mich.  669. 

31.  Kenyon  v.  Ionia  Board,  138 


§  425  THE  LAW  OF  TAXATION  608 

Statutory  Provisions. 

§3  of  Chap.  5  of  Act  No.  227  of  Public  Acts  of 
1885,  provides  for  the  taking  of  certiorari  on  giving 
notice  to  take  the  same  within  ten  days  after  the  mak- 
ing of  the  final  order.  It  would  seem  that  this  notice 
of  certiorari  contemplated  that  the  application  should 
be  made  within  ten  days. 

§3  of  Chap.  5  of  Act  fto.  254.  of  Public  Acts  of 
1897,  provides  that  the  notice  of  taking  the  certiorari 
shall  be  given  within  10  days  after  the  filing  of  a  copy 
of  the  final  order  with  the  county  clerk,  and  that  the 
proceedings  shall  be  such  as  is  used  in  certiorari  from 
justice  courts. 

§3  of  Chap.  5  of  Art  272  of  Public  Acts  of  1899, 
provide  that  "notice  of  such  certiorari  shall  be  served 
upon  the  county  drain  commissioner  within  ten  days 
after  the  copy  of  the  final  order  of  determination  of 
such  commissioner  in  establishing  any  drain  has  been 
filed  with  the  county  clerk  as  provided  in  §1  of  Chap. 
4,  in  the  same  manner  as  notice  is  required  to  be  given 
of  certiorari  for  reviewing  judgments  rendered  by  jus- 
tices of  the  peace.*  *  *  Provided,  no  court  shall 
allow  any  certiorari  questioning  the  legality  of  any 
drain  by  any  person  unless  notice  has  been  given  to  the 
county  drain  commissioner  in  accordance  with  the  pro- 
visions of  this  chapter." 

This  act  further  provides  that  if  no  certiorari  be 
brought  within  the  time  prescribed,  the  drain  shall  be 
deemed  to  have  been  legally  established,  and  its  legality 
shall  not  thereafter  be  questioned  in  any  suit  at  law  or 
equity. 


«.<»:•  ACTIONS  AT  LAW        §§§  426, 427,  1 

§426.     Certiorari.     Injury. 

A  plaintiff  in  certiorari  cannot  ask  the  court  to  relieve  him 
unless'  it  appear  that  the  proceedings  may  damage  him.  A 
possible  injury  to  another  party  does  not  justify  the  unin- 
jured party  in  suing  out  this  writ34.  Neither  can  a  plain- 
tiff set  up  a  third  persons  damage  as  ground  of  relief  to 
himself86.  A  return  that  a  drain  will  not  divert  the  water 
to  the  injury  of  the  plaintiff  is  final  and  conclusive3*.  Issues 
of  fact  cannot  be  found  upon  the  return  and  tried  by  the 
court87. 

§427.     Certiorari.     Collateral  Actions. 

A  pending  proceeding  in  equity  is  not  a  bar  to  legal  pro- 
ceedings, since  they  may  go  on  at  the  same  time  in  aid  ol 
the  relief,  without  confusion.  If  there  are  any  objections, 
they  usually  apply  in  equity  rather  than  law,  and  should  be 
set  up  there38. 

§428.     Certiorari.     Errors  Not  Cured  by  Return. 

The  return  cannot  set  up  facts  to  cure  jurisdictional  de- 
fects in  the  record39.  Thus,  a  return  that  the  commissioner 
gave  the  notice  required  by  statute  is  a  nullity40.  When, 

34.  C.  L.  84370;  Morse  v.  Wil-          36.     Hackctt     v.     Brown,     118 
Hams,  92  Mich.  250;   Davidson  v.      Mich.  141,  143. 

Otis.  24  Mich.  23.     In  Wolpert  v.  37.    Licklcy     v.     Bishopp,     150 

Newcome,   106   Mich.   357,  360,   it  Mich.  256. 

is  held  that  lack  of  service  of  cita-  38.    Robertson    v.     Baxter,    57 

ton  upon  a  third  party  cannot  br  Mich.  127. 

set    up    by    plaintiff.      Hauser   v.  39.    Harbaugh    v.     Martin,    30 

Burbank,  117  Mich.  463.  Mich.  234. 

35.  In   Berry   v.   Tinsman,    10S  40.     Wright  v.  Drain  Com'r,  44 
Mich.  672,  the  plaintiff  set  up  the  Mich.     557;     Dickinson    v.     Van 
diversion  of  water  from  another  Wormer,  39   Mich.   141 ;   Lane  v. 
drain,  in  which  last  drain  he  had  Burnap,  39  Mich.  736,  739;  Tire- 
no    interest.     In    Brady   v.    Hay-  man    v.    Drain    Com'r,    40    Mich. 
ward,    114    Mich.    326,    334,    the  175;       Goldsmith      v.       Highway 
plaintiff  was  not  allowed  to  avail  Com'r,   14   Mich.   528;  Dupont  v. 
himself    of    the    fact    that    some  Highway  Com'r..  28  Mich.  362. 
other  party  had  not  released. 


§  429  THE  LAW  OF  TAXATION  610 

however,  the  affidavit  for  the  writ  has  used  general  allega- 
tions of  infirmities,  and  also  set  up  special  objections,  and 
there  was  no  special  objection  to  the  notice  of  sale,  a  state- 
ment in  the  return  that  due  notice  was  given  is  sufficient41. 

§429.     Certiorari.     Explanations  in  Return. 

The  return  may  show  that  a  drain  will  not  divert  water 
to  the  injury  of  plaintiff42;  that  the  citation  was  served  by  a 
competent  person43  ;  that  the  special  commissioners  were  not 
interested  in  the  proposed  drain44 ;  that  on  a  petition  to 
deepen,  the  commissioner  in  fact  only  cleaned  out  a  drain,  as 
excusing  the  giving  of  personal  notice  of  the  assessment45 ; 
that  the  plaintiff  could  not  object  to  the  proceedings  of  the 
jury  because  the  extension  of  the  drain  over  his  land  had 
been  abandoned46 ;  that  the  equities  a're  against  the  appli- 
cant for  the  writ,  and  that  a  wife,  joining  with  her  husband, 
can  stand  in  no  better  position  than  he,  although  she  holds 
title  to  pa*rt  of  the  land  affected47.  The  return  is  not  neces- 
sarily conclusive  which  do  not  go  to  the  merits  of  the  peti- 
tion, but  are  made  merely  as  an  excuse  for  delay48.  In 
making  a  return  of  the  record,  it  should  consist  of  a  full  and 
complete  transcript  of  the  proceedings  of  which  a  review 
is  sought,  since  the  trial  is  had  by  an  inspection  of  the  record 
as  returned,  and  not  on  any  issue  of  fact.  Although  the 
command  of  the  writ  is  the  inferior  court  or  tribunal  shall 
send  up  its  record,  still,  a  transcript  should  be  returned,  un- 
less there  is  an  unmistakable  command  made,  to  suit  the 

41.  Davidson  v.  Otis,  24  Mich.         45.    Lanning     v.     Palmer,     117 
23.  Mich.   529,   531. 

42.  Hackett  v.      Brown,      128          46.     Maybe  v.  Miner,  45   Mich. 
Mich.,  141,   143.  568. 

43.  Wolpert  v.    Newcome,   106         47.     Roediger  v.    Drain   Com'f., 
Mich.  357,  361.  40   Mich.   475. 

44.  Roberts  v.      Smith,      115          48.     Burnett  v.  Scully,  56  Mich 
Mich.  5,  9.  374. 


611  ACTIONS  AT  LAW 

exigencies  of  the  case,  that  the  record  itself  should  be  sent 
up  and  not  a  transcript,  in  which  case  the  writ  must  be 
obeyed  literally.  For  making  this  return,  the  probate  judge 
is  only  entitled  to  $2.00,  since  the  drain  law  makes  it  his 
duty  to  perform  all  services  in  connection  with  drains,  in  this 
respect,  for  that  sum,  and  it  is  in  accordance  with  the  prac- 
tice of  certiorari  from  justice  courts49. 

49.        Patcrson      v.      Calhoun      Judge,  114  Mich.  416. 


CHAPTER  XXV. 
EQUITABLE  ACTIONS. 


§430.  Equity  Jurisdiction  over  Drain  Tax. 

§431.  Equity  Jurisdiction  over  Special  Assessments 

§432.  Legislative  Regulation  of  Injunction. 

§433.  Jurisdiction,  as  Affected  by  Amount. 

§434.  Injunction  to  Restrain  Waste. 

§435.  Injunction  Restraining  Expenditures. 

§436.  Restraining  Collection  cf  Tax. 

§437.  Restraining  Sale  of  Land. 

§438.  What  Constitutes  a  Cloud  on  Title. 

§439.  Bill  to  Quiet  Title. 

§440.  Bill  to  Quiet  Title  Against  Drain  Tax. 


§430.     Equity  Jurisdiction  Over  Drain  Tax. 

A  court  of  chancery  cannot  put  itself  in  the  place  of  the 
constitutional  inquest  and  judge  for  itself  upon  all  things 
which  it  was  for  that  tribunal  to  dispose  of.  The  constitu- 
tion has  confided  certain  matters  entirely  to  the  inquest. 
Moreover,  the  necessary  law  of  procedure  has  always 
broadly  distinguished  between  what  one  jurisdiction  may 
do  collaterally  with  the  proceedings  of  another,  and  what 
may  be  done  when  the  second  process  is  in  the  nature  of  an 
appeal  against  the  earlier  one.  The  exercise  of  eminent 
domain  is  not  a  head  of  equity  jurisprudence,  and  the  neces- 
sity of  taking  property  and  the  ascertainment  of  damages 
are  not  cognizable  by  a  bill  in  equity  brought  to  annul  the 
proceedings  of  the  proper  tribunal,  and  the  sort  of  discretion 
possessed  by  the  inquest  cannot  be  revised  and  ruled  in  a 
case  of  this  nature.  This  is  not  a  proper  remedy  to  review 


613  EQUITABLE  ACTIONS  ?    I  '•'•" 

questions  of  regularity  or  charges  of  error  in  the  drain  com- 
missioners proceeding  not  affecting  jurisdiction80.  Upon  the 
same  principle,  the  equity  court  will  not  review  the  merits 
of  the  assessment81.  The  equity  court  has  no  jurisdiction 
because  of  alleged  defects  in  the  petition  for  the  drain,  to 
restrain  the  commissioner  from  applying  to  the  probate  court 
for  the  appointment  of  special  commissioners,  unless  a  tres- 
pass is  threatened.  The  probate  court  should  first  pass  upon 
these  defects,  and  then  the  aggrieved  party  should  seek  his 
remedy  by  the  statutory  certiorari52. 

The  chancery  court  has  no  power  to  review  the  determina- 
tion as  to  the  necessity  of  a  drain58 ;  nor  to  review  the  assess- 
ment for  benefits.  The  finding  and  determination  of  the 
special  tribunals  appointed  for  these  purposes  are  final54. 
The  court,  however,  will  review  the  action  of  the  assessing 
or  reviewing  officers,  for  fraud ;  as  where  the  parties  in  in- 
terest are  denied  an  open  hearing,  and  lands  benefited  are 
omitted  from  the  assessment  roll55.  Equity  will  not,  how- 
ever, have  jurisdiction  except  where  some  constitutional 
right  is  invaded.  Certiorari  would  be  the  proper  remedy58. 
A  bill  will  lie  where  complainant  has  no  actual  notice  of  the 
proceedings,  and  the  notice  required  by  statute  was  not  pub- 
lished57. 

50.  See  §425  as  to  when  cer-     87. 

tiorari    and    not    bill    must    be  55.     Huddlemeyer  v.  Dickenson. 

brought.     Clark  v.  Drain  Com'r,  143  Mich.  250. 

80  Mich.  618,  619.  58.     Clarence    Twp.    v.    Dicken- 

51.  Smith  v.  Carlow,  114  Mich.  son.  151  Mich.  270,  where  it  was 
67.  claimed  that  there  were  insufficient 

52.  Strack  v.  Miller,  134  Mich,  signers  on  the  petition.    Certiorari 
311.  at  the  proper  time  was  the  proper 

53.  See    Necessity   8258    supra,  remedy. 

Swan  Creek  Twp.  v.  Brown,  130  57.    Hoffman  v.  Shell,  151  Mich. 

Mich.   382,   385 ;    Clark   v.    Drain  669 ;  Hinkley  v.  Bishop,  152  Mich 

Com'r.,  50  Mich.  618.  256. 

54.  Smith  v.  Carlow,  114  Mich. 


§§431,432  THE  LAW  OF  TAXATION  614 

§431.     Equity  Jurisdiction  Over  Special  Assessments. 

In  general,  the  court  will  leave  a  party  to  his  remedy  at 
law  where  the  assessing  party  has  jurisdiction  to  impose 
the  tax68.  Where,  however,  the  tax  is  illegal,  and  is  made 
a  lien  upon  the  land,  a  bill  to  quiet  title  will  lie69.  The  at- 
torney general  may  intervene,  by  a  bill,  and  restrain  the 
municipality  from  entering  into  an  illegal  contract.  When 
he  does  intervene,  the  abuse  should  be  of  a  substantial  nature, 
and  not  of  a  character  merely  technical  or  unimportant.  It 
should  appear  that  the  public  has  a  substantial  interest  in 
the  question ;  that  the  right  involved  is  not  merely  a  private 
right;  and  where  the  complaint  is  against  the  misuse  of,  or 
misappropriation  of  funds,  that  it  be  more  than  a  nominal 
sum,  something  which  it  would  not  be  beneath  the  dignity 
of  the  state  to  take  notice  of,  and  protect  by  such  proceed- 
ings60. The  fact  that  the  contract  in  unperformed,  or  partly 
performed,  will  not  avoid  the  tax61.  Tax  payers  have  a 
right  to  file  a  bill  to  enjoin  the  construction  of  a  public  work 
and  rescind  the  sale  of  bonds  therefor,  without  acting 
through  the  attorney  general62.  A  bill  will  lie  to  restrain 
illegal  proceedings  to  establish  a  sewer  district  before  the 
tax  is  ordered  spread.  Such  delay  might  result  in  an  estoppel 
that  would  bar  complainant  of  his  action63. 

§432.     Legislative  Regulation  of  Injunction. 

The  legislature  may  limit  the  use  of  this  process  and  pre- 
scribe the  court  or  procedure,  within  constitutional  limita- 

58.  See  Collateral  attack,  §455,  est  bidder  affords  such  grounds, 
post.  Williams     v.     Detroit,     2  61.    Motz  v.   Detroit,   18   Mich. 
Mich.  560.  515;    Dixon   v.   Detroit,    86   Mich. 

59.  Thomas  v.  Gain,  35  Mich.,  516;    Cass    Farm    Co.   v.   Detroit, 
155.  124  Mich.  426. 

60.  Attorney    General    v.    De-  62.     River  Rouge  v.  Judge,  147 
troit,  26  Mich.  163,  267  ;  where  it  is  Mich.  204. 

held  that  ignoring  tfie  statute  and         63.     Thayer     Lumber     Co.     v. 
not  letting  a  contract  to  the  low-      Muskegon,  152  Mich.  59. 


•'•  1  "»  EQUITABLE  ACTIONS 

tions,  by  which  tax  matters  shall  be  heard  and  determined. 
It  has  exercised  this  power  in  limiting  the  right  to  bring 
replevin  for  chattels  seized  to  pay  taxes,  and  has  limited  the 
right  to  the  use  of  injunction*4.  This  prohibition  does  not 
extend  to  taxes  levied  prior  to  the  passage  of  the  act".  It 
is,  however,  constitutional.  It  does  not  interfere  with  the 
power  of  the  equity  court  to  cancel  a  lien  or  remove  a  cloud 
from  title,  but  does  prevent  it  from  issuing  a  temporary  in- 
junction restraining  the  collection  of  the  tax  pending  the 
hearing  of  the  case.  So  serious  have  been  the  embarress- 
ments  caused  by  an  improvident  use  of  the  writ  of  injunc- 
tion, and  other  obstructive  processes,  that  some  legislative 
bodies  have  forbid  the  issuance  of  injunction  and  other  writs 
which  would  delay  the  collection  of  the  tax.  The  tax  re- 
ferred to  in  the  statute  means  that  which  is  in  a  condition 
to  be  collected  as  a  tax,  and  is  claimed  by  the  proper  public 
officers  to  be  a  tax,  although  on  the  other  side  it  is  claimed 
to  be  erroneously  or  illegally  assessed.  Consequently,  an 
alleged  illegal  tax  falls  within  the  inhibition  of  the  statute88. 
The  bill  may  still  be  filed  to  cancel  the  tax  and  remove  the 
cloud  from  title,  under  this  act;  but  no  injunction  should 

64.     §107,    Act     153    of     Public  unless  the  tax  which  may  or  shall 

Acts  of   1885 ;    C.    L.    93937,  pro-  be  levied  upon  the  property  of  any 

vides  "no  injunction  shall  issue  to  such  complainant  shall  amount  to 

stay    proceedings    for   the    assess-  more    than    one    hundred    dollars, 

ment  or  collection  of  taxes  under  and   all   such    suits   brought   shall 

this  act."     Act  No.  183  of  Public  be  dismissed  by  the  court."     This 

Acts  of  1903  provides:     "No  de-  act  was  repealed  by  Act  No.  21ft 

cree  shall  be  made  or  entered  in  of  Public  Acts  of  1905. 

any  suit  pending,  or  in  any  suit  65.     Auditor    General    v.    losco 

which     may     be    hereafter    com-  Judge,   58    Mich.   345;    Bartlctt   v. 

menced,    in    any    of    the    circuit  Austin- Western  Co.,  147  Mich.  58. 

courts   in   chancery  in   this   state.  66.     Eddy  v.  Lee  Twp.,  73  Mich, 

brought   to   restrain   the   proceed-  123,  130;  Snyder  v.  Marks,  109  U. 

ings  taken,  or  about  to  be  taken,  S.  189;  U.  S.  v.  Black,  11  Blatchf. 

by  any  officer  or  officers  of  any  23;   Allen  v.    Bean,    8  Bias,    88; 

township,  county  or  municipality,  Lake  Superior,  etc..  Co.  v.  Audi- 

which    may    or    shall    result   in    a  tor  General.  79  Mich.  351. 
tax    being    levied    upon    property. 


§§  433,  434  THE  LAW  OF  TAXATION  616 

be  granted.  If  one  is  allowed,  it  should  be  dissolved  on 
motion;  but  the  tax  may  be  paid  into  court  to  abide  the 
event  of  the  suit67.  The  rule  cannot  be  carried  so  far  that 
those  executing  the  tax  laws  may  deliberately  disregard 
them,  and  assess  the  whole  tax  upon  a  part  only  of  those 
who  are  liable  to  pay  it,  and  have  it  still  a  legal  tax.  The 
officers  who  are  appointed  to  execute  the  laws  are  not  thereby 
placed  beyond  legal  control68. 

§433.     Equity  Jurisdiction.     Amount. 

The  jurisdiction  of  a  court  of  equity  depends,  not  upon 
the  amount  of  the  tax,  in  the  absence  of  statutory  limita- 
tion, but  upon  the  value  of  the  property  affected  by  the  tax. 
If  the  property  is  of  one  hundred  dollars  value  or  upwards, 
equity  will  entertain  jurisdiction  to  remove  a  cloud  from 
title  after  the  tax  has  been  levied89. 

§434.     Injunction  to  Restrain  Waste. 

It  is  competent  to  authorize  the  riling  of  such  a  bill  where 
the  taxes  are  unpaid.  It  has  long  been  notorious  in  this 
state  that  owners  of  lands  valuable  mainly,  if  not  entirely, 
for  the  timber  upon  them,  remove  their  timber  without  the 
payment  of  taxes,  and  pay  no  taxes  thereafter.  Such  lands  are 
the  usually  sold  and  bid  in  at  the  tax  sales  by  the  state.  The 
purpose  of  this  statute  is  to  prevent  the  removal  of  the  tim- 
ber without  payment  of  the  tax,  and  thus  secure  to  the  state 
the  revenue  which  is  justly  due  from  such  owners.  This 
statute  applies  only  to  wild  lands70.  The  bill  may  be  filed 
under  this  act  at  any  time  after  the  tax  has  been  lawfully 

67.  Walsh  v.    King,    74    Mich.,      118    Mich.    189;    Fuller   v.    Grand 
350.  Rapids,   40   Mich.  395. 

68.  Weeks  v.     Milwaukee,     10          70.      Act    223,    Public    Acts    of 
Wis.  264.  1S89.   3    H.    S-   §H70al  ;    Gtldwell 

69.  Dodge  v.     Circuit     Judge,      v.  Ward,  S3  Mich.  14. 


017  EQUITABLE  ACTIONS  §§435,436 

demanded  and  there  has  been  a  refusal  to  pay.  It  cannot  be 
filed  until  after  the  return  of  taxes  unless  there  has  been  a 
demand71.  It  was  not  intended  by  the  legislature  that  the 
imperative  mandate  of  the  statute  should  be  defeated  by  a 
showing  by  affidavit  that  the  tax  could  have  been  collected 
by  other  process,  or  that  it  was  not  the  intention  of  the 
owners  of  the  lands,  or  of  the  timber  upon  them,  to  commit 
any  waste  within  a  year,  or  any  period;  or  that  if  they 
should  cut  what  they  intended  to,  there  would  still  be  enough 
value  in  the  lands  or  timber  to  satisfy  the  taxes  assessed 
against  the  land.  A  mandamus  will  issue,  if  necessary,  to 
compel  the  issuance  of  an  injunction72. 

§435.     Injunction.     Restraining  Expenditures. 

Under  the  preponderance  of  authorities,  a  tax  payer  who 
will  be  injured  by  a  threatened,  imminent,  illegal  expenditure 
of  public  money  may  enjoin  the  same  if  the  damage  he 
would  suffer  is  sufficient  to  confer  jurisdiction  upon  a  court 
of  equity73.  Any  number  of  private  citizens,  if  the  injury 
of  each  is  sufficient  to  give  equity  jurisdiction,  may  join  in 
such  an  action  since  there  is  no  reason  for  their  bringing 
separate  suits74. 

§436.     Restraining  Collection  of  Tax. 

It  is  a  general  rule  that  equity  will  not  enjoin  the  collec- 
tion of  a  tax  unless  it  creates  a  cloud  upoa  title,  but  will 

71.  Caldwell  v.  Ward,  88  Mich.  58     Mich.     416.       In     Miller     T. 
378.  Grandby,  13  Mich.  540,  an  injunc- 

72.  Rossman     v.     Adams,     91  tion  was  refused  where  the  corn- 
Mich.  69,  73.  plainant  was  afraid  that  the  board, 

73.  Savidge    v.     Spring    Lake  authorized     to     allowed     certain 
Twp.,   112  Mich.  91 ;  Curtinius  v.  monies     advanced     for     bounties. 
Grand  Rapids,  etc.,  Ry.,  37  Mich,  would  pay  other  claims  not  COY- 
583 ;  Callam  v.  Saginaw,  50  Mich,  ered  by  the  statute.    Farr  v.  Grand 
7;    Alpcna    v.    Circuit   Judge,    97  Rapids,  112  Mich.  99;  Mitchell  v. 
Mich.  550.  Negaunee,  113  Mich.  359. 

74.  Putnam    v.    Grand    Rapids. 


§  436  THE  LAW  OF  TAXATION  618 

leave  the  parties  to  their  remedy  at  law.  This  is  also  a 
statutory  provision,  as  well  as  one  of  public  policy75.  While, 
as  a  general  rule,  equity  will  not  restrain  the  collection  of  a 
tax  on  personality,  the  remedy  at  law  being  considered  ade- 
quate, yet,  where  a  bill  is  filed  to  remove  the  lien  upon  land 
created  by  an  invalid  tax,  and  the  same  invalid  tax  is  as- 
sessed upon  the  personal  property  of  the  complainant,  a  court 
which  has  obtained  jurisdiction  to  restrain  the  collection  of 
the  tax  upon  the  land  may  properly  restrain  the  collection 
of  the  same  tax  upon  the  personality,  upon  the  principle  of 
having  obtained  jurisdiction  of  part  of  the  subject  matter, 
it  will  take  cognizance  of,  and  settle,  the  entire  controversy76. 
It  will  not  restrain  the  collection  of  a  tax  in  advance  of  its 
levy77.  There  are  certain  exceptions  to  the  foregoing  rule 
where  an  injunction  will  be  allowed.  In  case  the  property 
sought  to  be  taken  is  of  such  a  nature  that  the  taking  of  a 
small  part  will  destroy  or  greatly  injure  the.entire  property, 
and  likewise  greatly  disturb  the  public  use  and  interest,  as 
in  the  case  of  a  railroad  company,  an  injunction  will  lie  to 
restrain  such  interference  with  the  corporate  property78. 
When  a  complainant  comes  into  court  seeking  to  restrain  a 
sale  of  his  lands  upon  a  claim  that  the  taxes  are  illegal,  he 
subjects  himself  to  the  jurisdiction  of  the  court.  It  is  always 

75.  St.    Johns    National    Bank      283,  287. 

v.   Bingham   Twp.   113   Mich.  203.  77.     Miller      v.      Grandby,      13 

This  case  is  distinguished  from  66  Mich.  5.40,  548. 

Mich.  273,  in  that  the  suit  did  not  78.    L.  S.  &  M.  S.  Ry.  v.  Grand 

interfere  with  the  business  of  the  Rapids,  102  Mich.  374;  Detroit  v. 

bank.     In  Hagenbuch  v.  Howard,  Wavne   Circuit  Judge,   127   Mich. 

34  Mich.  1,  it  is  held  that  although  604 ;   Hackley  v.   Mack,  60  Mich, 

the  bill   alleged   fraud   in  levying  591.      In    Lenawee    Co.    Bank    v. 

the  tax  on  the  bank  stock,  an  in-  Adrian,    66    Mich.    273,    following 

junction  would  not  lie.    In  Mears  Osborn    v.    Bank,    of    U.    S.,    9 

v.  Howarth,  34  Mich.  19,  it  is  held  Wheat.  738,  a  levy  for  an  illegal 

that  as  regards  a  personal  tax,  the  tax  upon  the  bank  was  enjoined, 

remedy  at  law  is  ample.  the  levy  interfering  with  the  busi- 

76.  Folkerts  v.  Power,  42  Mich,  ness  of  the  bank. 


619  EQUITABLE  ACTIONS  §437 

his  duty  in  such  a  case  to  point  out  what  amount  is  excessive 
and  what  is  just,  and  pay,  or  offer  to  pay,  the  latter.  He 
was  personally  liable  for  the  legal  taxes  assessed  against 
him,  and  they  could  have  been  collected  by  levy  against  his 
personal  property.  He  must  therefore  be  prepared  to  pay 
such  taxes  as  are  found  legal ;  and  the  court  has  power  to 
enforce  such  decree  by  execution79.  An  officer  selling  per- 
sonal property  to  satisfy  a  tax  will  be  bound  by  the  same 
rules  that  he  would  in  judicial  sales  in  regard  to  the  amount 
sold.  He  must  not  offer  an  unreasonable  amount,  nor  a 
lot  of  separate  property  in  gross,  when  a  less  amount  would 
be  sufficient.  When  the  tax  is  illegal,  or  the  owner  of  the 
property  is  not  liable  therefor,  and  a  large  amount  is  offered 
for  sale,  equity  will  enjoin  the  proceeding80. 

§437.     Restraining  Sale  of  Land  for  Taxes.    Quieting  Title. 

A  bill  of  this  nature  is  an  appeal  to  the  equitable  considera- 
tion of  the  court  and  the  complainant  is  entitled  to  relief 
only  to  the  extent  to  which  he  would  be  wronged  by  the 
wrongful  enforcement  of  the  tax,  and  that  is  simply  to  the 
extent  to  which  the  taxes  are  illegal  or  excessive.  He 
should  at  least  offer  to  pay  such  taxes  as  are  legal81 .  When 

79.  Tinsdale   v.    Auditor   Gen-         81.    Smith  v.  Auditor  General, 
eral,   85   Mich.   261,  264,   Law   of  20  Mich.  398;  Merrill  v.  Auditor 
1885;  Gamble  v.  Auditor  General,  General,   24   Mich.    170;   Connors 
78   Mich.    302;    Sage   v.   Auditor  v.   Detroit,  41  Mich.   128;   Hans- 
General,  72  Mich.  638.    The  same  com    v.    Hinman,    29    Mich.    419. 
rule  does  not  apply  in  a  decree  holding  an  offer  to  pay  legal  taxes 
of   tax    sale    since   that   is   essen-  sufficient  without  a  formal  tender. 
tially  a  proceeding  in  rem,  and  is  Gamble  v.  Stevens,  78  Mich.  302. 
under  a  later  law.     See  Auditor  In    Clement   v.    Everst.   29   Mich. 
General    v.    Stiles,    83    Mich.   460,  19.  where  the  bill  only  prayed  to 
distinguished  in  85  Mich.  261.  restrain  the  illegal   excess  there- 

80.  Starr  v.  Shepard,  145  Mich,  in  specified,  it  was  held  unneces- 
302,  following  Leaton  v.  Murphy,  sary  to  make  an  offer  to  pay  the 
78  Mich.   77,  as  to  the   right  of  legal  taxes.     Conway  v.  Waverly 
the  treasurer  to  sell  an  excessive  Twp.,  15  Mich.  257. 

amount. 


§  438  THE  LAW  OF  TAXATION  620 

the  bill  does  not  distinguish  between  the  legal  and  illegal 
taxes,  nor  offer  to  pay  such  as  are  just,  it  will  be  dismissed 
unless  all  of  the  taxes  are  void82.  Where  no  inequality 
or  injustice  is  shown  in  the  assessment  complained  of,  but 
merely  technical  irregularities  are  relied  upon,  a  bill  will  not 
lie  to  restrain  the  tax.  He  who  demands  relief  from  his 
taxes  has  no  standing  in  a  court  of  equity  unless  he  offers 
to  perform  that  which  is  equitable.  In  such  cases,  the  ag- 
grieved party  will  be  left  to  his  remedy  at  law83.  A  levy 
upon  personal  property  is  presumed  to  satisfy  the  tax;  and 
until  the  property  is  sold  and  there  is  a  deficiency,  a  bill  will 
not  lie  to  quiet  title,  as  there  is  presumably  no  cloud  to  re- 
move84. When  a  number  of  tax  payers  are  similarly  in- 
jured, they  may  join  in  a  bill  to  restrain  the  collection  of 
an  illegal  tax85.  A  bill  will  lie  to  set  aside  a  notice  of  pur- 
chase, and  for  permission  to  repay  the  amount  paid  by  the 
purchaser,  for  the  same  reasons  that  could  be  set  up  against 
the  issuing  of  a  writ  of  assistance86. 

§438.     What  Constitutes  a  Cloud  on  Title. 

A  bill  to  remove  a  cloud  from  title  rests  upon  the  theory 
that  a  cloud  is  not  created  by  any  lien  that  is  void  upon  its 
face,  since  a  decree  of  the  court  cannot  make  it  more  plainly 
void.  The  bill  rests  upon  the  idea  that  there  is  a  latent 
defect  or  illegality87.  A  cloud  upon  the  title  is  something 

82.  Conway  v.   Waverly  Twp.,      Monday  in  May. 

15  Mich.  257;   Pillshury  v.  Hum-  84.     Henry      v.      Gregory,      29 

phrey,  26  Mich.  245,  248;  Palmer  Mich.  68. 

v    Napoleon  Twp.,  16  Mich.  176;  85.     Bristol      v.      Johnson,     34 

Wager  v.  Bowley,   104  Mich.  39;  Mich.    123;     Scofield   v.   Lansing, 

Bond  v.  Kenoshe,  17  Wis.  288.  17  Mich.  437. 

83.  In    Albany    Mining   Co.    v.  86.    John  Duncan  Land  &  Lum- 
Auditor    General,    37    Mich.    391,  her  Co.  v.  Rusch,  145  Mich.  1. 
397,    the    only    irregularity    com-  87.     Curtiss    v.    East    Saginaw, 
plained  of  was  that  the  roll  was  35  Mich.  508. 

not  ready  for  review  on  the  third 


621  EQUITABLE  ACTIONS  §439 

which  constitutes  an  apparent  incumbrance  upon  it,  or  an 
apparent  defect  in  it ;  something  that  shows  prima  facie  some 
right  of  a  third  party,  either  to  the  whole  or  to  some  in- 
terest in  it.  An  illegal  tax  may,  or  may  not  be,  a  cloud  on 
title.  If  the  alleged  tax  has  no  semblance  to  legality,  if 
upon  the  face  of  the  proceedings  it  is  wholly  unwarranted 
by  law,  or  for  any  reason  totally  void,  so  that  any  person 
inspecting  the  record  and  comparing  it  with  the  law  is  at 
once  apprised  of  the  illegality  of  the  tax,  it  would  neither 
constitute  a  defect  nor  an  apparent  incumbrance,  and  there- 
fore in  law,  no  cloud.  If  a  tax  is  levied  under  an  uncon- 
stitutional law,  the  tax  payer  is  presumed  to  know  the  law, 
and  that  it  is  unconstitutional,  and  that  consequently  a  tax 
levied  thereunder  is  void  and  of  no  effect,  and  not  even  a 
cloud88.  Where  a  statute  makes  a  tax  deed  prima  facie  evi- 
dence of  the  legality  of  the  sale,  it  would  seem  that  a  bill 
ought  to  lie.  A  tax  deed  under  our  later  tax  laws,  upon 
its  face,  is  a  presumptive  title  to  land.  Nothing  would  ap- 
pear upon  the  face  of  the  deed  to  apprise  anyone  that  any 
required  certificate  had  not  been  made,  or  that  any  tax  was 
illegal.  Every  instrument  purporting  by  its  terms  to  con- 
vey land  from  the  original  source  of  title,  however  invalid, 
creates  a  cloud  upon  title  if  it  requires  extrinsic  evidence  to 
show  its  invalidity.  Such  a  deed,  emanating  from  the  auditor 
general,  would,  if  it  did  not  confer  an  absolute  title,  cast  a 
cloud  upon  title  and  materially  affect  the  market  value  and 
salability  of  the  land8*. 

§439.     Bill  to  Quiet  Title. 

Where  taxes  assessed  upon  a  piece  of  land  are  illegal, 
and  the  sale  of  the  land  for  such  taxes  would  create  a  cloud 

88.  Detroit  v.  Martin,  34  Mich.      Mich.   542,    54«;    Pixley   r.    Hug- 
170,  173.  gins,  15  Cal.   128;  Van  Wyck  v. 

89.  Stoddard    v.    Prcscott,    58      Knevals,  10«  U.  S.  3«0. 


§  439  THE  LAW  OF  TAXATION  622 

upon  the  title,  a  bill  in  equity  will  lie  to  remove  such  cloud90. 
The  jurisdiction  of  the  court  depends,  not  upon  the  amount 
of  the  tax,  but  upon  the  value  of  the  land91.  It  will  lie 
against  the  purchaser  of  land  at  a  void  tax  sale,  where  a 
decree  is  void  upon  its  face92;  but  it  will  not  lie  where  the 
sale  was  void  in  cases  where  the  auditor  general  should 
issue  a  certificate  of  error,  or  where  a  motion  should  be 
made  to  the  court.  In  such  cases,  the  remedy  provided  by 
statute  must  be  followed93;  but  where  the  court  was  with- 
out jurisdiction,  a  bill  will  lie94.  A  bill  will  lie  for  fraud, 
however,  where  the  county  treasurer  informs  a  mortgagee 
that  the  taxes  are  paid,  when  he  knows  they  are  not,  and 
the  treasurer  procures  another  person  to  bid  them  in95. 
Where  a  person  buys  land  subject  to  an  existing  tax,  it  will 
be  presumed  that  he  received  a  reduction  therefor  in  the 
purchase  price,  and  he  will  not  be  heard  in  equity  to  contest 
such  tax96.  The  statute  authorizing  the  auditor  general  to 
file  his  petition  in  chancery97,  does  not  repeal  by  implication, 
the  general  statute98,  authorizing  the  filing  of  a  bill  to  quiet 
title,  because  the  question  might  eventually  be  reached  on 
the  hearing  on  the  petition.  Jurisdiction  to  institute  suits  in 
chancery  for  the  removal  of  clouds  upon  title  was  given  to 

90.  Detroit  v.  Martin,  34  Mich.      157. 

170;    Palmer    v.    Rich,    12    Mich.  93.     Kneeland    v.    Hyman,    118 

414   holding   that   a   sale  of   land  Mich.    56;    Carpenter   v.    Auditor 

for   a   void    tax   creates   a   cloud  General,    144    Mich.    251;    Knee- 

tipon   title  when  the  tax  deed   is  land  v.  Wood,  117  Mich.  174 ;  Mc- 

made  prima  facie  evidence  of  the  Fadden  v.  Brady,  120  Mich.  669. 

regularity    of    the    tax    and    sale.  94.    Wagot  v.  Auditor  General, 

Thomas    v.    Gain    35    Mich.    155;  140  Mich.  593;  Rumsey  v.  Griffin, 

Harding  v.   Auditor  General,   140  138  Mich.  413. 

Mich.  646;  Marquette,  etc.,  Ry.  v.  95.     Christian  v.  Soderberg,  118 

Marquette,    35    Mich.    504;    Simp-  Mich.  47. 

kins  v.  Ward,  45  Mich.  559 ;  Row-  96.     Gamble    v.    East    Saginaw, 

land  v.  Doty,  Har.  Ch.  3;  Chaffee  43  Mich.  367. 

v.  Detroit,  53  Mich.  573.  97.     §52,     Act     195     of     Public 

91.  Fuller  v.  Grand  Rapids,  43  Acts  of   1889. 

Mich.   5.67.  98.     H.   S.   §6626,   C.   L.    §448. 

92.  Millard  v.  Truax,  99  Mich. 


623  EQUITABLE  ACTIONS  : 

the  holders  of  the  legal  title  by  the  code  of  1833.  It  was 
enlarged  by  the  act  of  1840  so  as  to  give  the  right  to  owners 
of  equitable  titles.  In  the  absence  of  an  express  provision, 
it  cannot  be  held  that  it  was  the  intention  of  the  legislature 
to  take  away  this  important  remedy,  and  compel  land  owners 
to  wait  two  years  or  more  from  the  time  that  taxes  became 
a  lien  upon  their  lands  before  they  can  have  an  opportunity 
to  contest  their  legality.  He  may  file  his  bill  prior  to  the 
time  of  the  filing  of  the  auditor  general's  petition89.  The 
bill  should  set  forth  the  date  and  description  of  the  tax 
deed  assailed,  and  show  the  claims  of  the  complainant  in 
detail1.  The  act  of  18692,  allowing  the  holder  of  a  tax  title 
to  file  a  bill  to  quiet  title  though  the  land  was  occupied  by 
another,  was  repealed  in  1882,  and  would  not  apply  to  a 
subsequent  sale  of  the  land  for  taxes  assessed  before  the 
repeal  of  the  act3.  All  of  the  rules  of  collateral  attack  apply 
to  the  decree  of  sale  when  assailed  by  a  bill  to  quiet  title. 
Unless  it  can  be  shown  that  the  court  was  without  jurisdic- 
tion to  enter  the  decree,  or  substantial  errors  occurred  after 
the  entry  thereof,  this  bill  will  not  lie4.  A  bill  will  lie  against 
a  municipality  as  well  as  against  an  individual.  A  lien  for 
taxes  will  be  extinguished  by  adverse  possession8.  There 
is  no  statute  which  requires  the  owner  of  an  original  title, 
cut  off  in  tax  proceedings,  to  execute  a  release  or  disclaim 
an  interest  in  the  land.  His  record  title  is  not  a  cloud  upon 
the  title  acquired  through  the  tax  proceedings.  If  he  is  in 
possession  of  the  land  and  refuses  possession  to  the  tax 

99.    Lake  Superior  Ship  Canal  Mich.   662;   Tinker  v.    Piper,  149 

Co.  v.  Auditor  General,  79  Mich.  Mich.  335. 

351.  354.  4.    See    Decree;    Carpenter    T. 

1.  Jenks      v.      Hathaway,     48  Auditor  General.   144   Mich.  251. 
Mich.  536;  Flint  Land  Co.  Lt.  v.  5.    Cass   Farm   Co.  Lt.   y.   De- 
Fochtenan.  140  Mich.  341.  troit,  124  Mich.  4t«;  Schneider  v. 

2.  H.   S.  §1168.  Detroit.   135  Mich.  540. 

3.  Goodman     v.      Nester.      64 


§  440  THE  LAW  OF  TAXATION  624 

title  holder,  a  writ  of  assistance  issued  on  the  footing  of 
the  original  decree  may  be  procured.  If  he  is  out  of  pos- 
session, asserting  no  title,  he  should  not  be  amerced  in  costs 
and  made  to  bear  expense  for  refusing  to  do  what  he  is 
under  no  obligation  to  do.  In  such  a  case,  a  bill  to  quiet  title 
will  not  lie6. 

§440.     Bill  to  Quiet  Title  Against  Drain  Tax. 

The  statute  makes  the  tax  prima  facie  a  charge  against 
the  owner  of  the  land,  which  becomes  a  lien  upon  the  land 
when  the  roll  is  delivered  to  the  treasurer.  Such  a  lien,  when 
the  proceedings  are  void,  constitutes  a  cloud  upon  the  title, 
to  remove  which  a  bill  will  lie7. 


6.    Triangle  Land  Co.  v.  Nes-         7.    Frost     v.     Leatherman,     55 

sen    et    al,    15    L.    N.    1054,    Mich.  33. 

Mich. 


CHAPTER  XXVI. 
PLEADINGS,  ETC 


§441.  General   Practice. 

8442.  Parties  Complainant. 

5443.  Parties  Complainant  on  Drains. 

§444.  Parties  In  Re  Special  Assessments. 

8445.  Parties  Defendant. 

5446.  Auditor  General  as  Defendant. 

8447.  Parties  Defendant  in  Drain  Proceedings. 

§448.  Averments. 

8449.  Amendments. 

§450.  Amendments  In  Re  Special  Assessments. 

8451.  Opening  Decree. 

8452.  Evidence  Before  Jury  In  Re  Special  Assessments. 

8453.  Collateral  Attack  of  Tax  Decree. 

8454.  Collateral  Attack  of  Drain  Proceedings. 
6455.  Collateral  Attack  of  Special  Assessments. 
8456.  Res  Judicata. 

§457.  Res  Judicata  in   Drain   Proceedings. 

§458.  Evidence,  Certificates,  etc. 

8459.  Evidence,  Tax  Roll. 


§441.     Practice. 

A  bill  of  interpleader  is  not  the  proper  proceeding  to. 
enable  a  township  treasurer  to  determine  the  right  to  a 
specific  drain  tax  assessed  against  a  specific  parcel  of  land, 
when  the  property  owners  claim  the  tax  is  illegal  and  are 
suing  to  recover  it  back.  The  holders  of  drain  orders  on 
that  particular  drain  fund  have  no  such  interest  as  entitles 
them  to  be  made  parties1.  In  order  that  a  bill  should  be 
demurrable  for  the  amount  involved  it  should  affirmatively 
appear  to  be  less  than  $  100.00s. 

1.    Wallace  v.  Sorter,  52  Mich.         2.    Gamber  v.  Holben.  5  Mich. 
159.  335. 

(40) 


§  442  THE  LAW  OF  TAXATION  626 

Statutory  Provision. 

Act  No.  183  of  Public  Acts  of  1903,  provides :  "No 
decree  shall  be  made  or  entered  for  the  complainant  in 
any  suit  pending,  or  in  any  suit  which  may  be  hereafter 
commenced,  in  any  of  the  circuit  courts  in  chancery  in 
this  state,  brought  to  restrain  the  proceedings  taken,  or 
about  to  be  taken,  by  any  officer  or  officers  of  any  town- 
ship, county,  or  municipality,  which  may  or  shall  result 
in  a  tax  being  levied  upon  property,  unless  the  tax 
which  may  or  shall  be  levied  upon  the  property  of  any 
such  complainant  shall  amount  to  more  than  one  hun- 
dred dollars,  and  all  such  suits  brought  shall  be  dis- 
missed by  the  court." 

If  the  assessment  is  illegal,  a  bill  will  lie  as  soon  as  the 
assessment  is  made,  before  the  roll  goes  to  the  supervisor3. 
A  bill,  however,  will  not  lie  to  restrain  the  commissionei 
from  applying  to  the  probate  court  for  the  appointment  of 
special  commissioners4.  Equity  proceedings  may  go  on  col- 
laterally with  certiorari5.  When,  by  ordinance,  a  munici- 
pality interferes  with  the  vested  right  of  a  citizen,  the  remedy 
is  by  injunction  and  not  at  law,  unless  some  overt  act  has 
been  committed6.  Where  a  bill  of  complaint  is  filed,  and 
the  defendant  answers,  and  couples  a  demurrer  with  the 
answer,  the  lower  court  should  not  dispose  of  the  case  upon 
the  demurrer  alone,  as  that  would  split  up  the  case  and  be 
liable  to  lead  to  two  trials7. 

§442.     Parties  Complainant. 

Where  the  property  of  many  different  owners  has  T>een 
bid  in  by  a  municipality,  such  owners  cannot  join  in  one 

3.  Lindsay     v.     Eastwood,     72  6.     Stevenson  v.  Muskegon,  112 
Mich.    336.  Mich.  72. 

4.  Strack  v.   Miller,   134  Mich.  7.    Zabel      v.      Harshman,      68 
311.  Mich.    27;    Gray    v.    Eldred,    144 

5.  Robertson     v.     Baxter,     57  Mich.  23. 
Mich.  127. 


627  PLEADINGS,  ETC.  i    \\  ^ 

action  to  set  aside  the  sale.  Each  property  owner  must 
bring  his  own  action.  The  joinder  of  several  parties  simi- 
larly interested  in  resisting  a  common  aggressor  was  orig- 
inally allowed  to  save  multiplying  litigation,  to  settle  once 
and  finally  the  matters  in  contention.  It  was  at  first  strictly 
confined  to  cases  where  the  act  complained  of,  if  done,  or 
continued,  would  affect  every  one  in  the  same  way,  and 
would  affect  all,  if  any.  It  was  applied  in  questions  of  com- 
mons in  pasturage,  fisheries,  and  similar  interests,  and  in 
questions  of  titles,  which  were  asserted  over  certain  districts. 
It  was  extended  on  the  same  grounds  to  frauds  or  wrongs 
by  corporate  agents  against  the  interests  of  corporators,  pub- 
lic or  private.  It  was  finally  applied  to  restrain  taxes  or 
assessments,  in  which  the  inhabitants  of  localities  taxed,  or 
the  owners  of  lands  in  assessment  districts,  were  sought  to 
be  charged  for  a  common  burden.  There  is  no  doubt  thai 
in  some  of  these  cases  the  rule  may  have  been  extended 
somewhat  beyond  the  time  first  laid  down.  But  in  all  of  the 
cases  which  have  been  well  considered,  there  has  been  one 
cause  of  grievance  which  at  the  time  of  the  filing  of  the  bill 
involved  some  aggressive  action  in  which  all  of  the  parties 
complaining  were  involved  in  precisely  the  same  way.  In 
such  actions,  if  any  person  set  up  a  grievance  not  of  the 
same  common  nature  with  those  of  the  rest,  the  bill  could 
not  be  maintained8.  Where  the  bill  is  to  set  aside  an  assess- 
ment, the  same  doctrine  prevails9.  Parties,  however,  sever- 
ally taxed  but  having  no  common  interest  except  that  of 
whether  or  not  the  law  is  valid  under  which  they  are  taxed, 
which  law  applies  to  all  of  a  particular  class  within  the 
state,  cannot  join  in  a  bill.  Suits  do  not  become  of  equit- 

8.  Brcnnan    v.    Bay    City,    48     34;  Scofield  v.  Lansing.  17  Mich. 
Mich.    238,   237.  438,   445. 

9.  Kcrr   v.   Lansing,    17    Mich. 


§  443  THE  LAW  OF  TAXATION  628 

able  cognizance  simply  because  of  their  number.10.  Where 
different  and  separate  owners  in  a  township  or  assessing 
district  are  assessed  by  the  same  officers  or  board,  and  the 
defects  complained  of  are  the  same  in  each  case,  they  may 
join  in  one  bill11.  Where  the  wife  owns  the  real  property 
but  occupies  it  with  her  husband,  both  may  join  in  a  bill  to 
restrain  the  collection  of  an  illegal  tax12.  The  individual 
stockholders  of  a  corporation  may  file  a  bill  to  restrain  the 
sale  of  its  personal  property  for  an  illegal  tax  where  the 
company  itself  refuses  to  act13. 

§443.     Parties  Complainant  on  Drains. 

Where  the  parties  wait  until  the  several  taxes  have  be1 
come  charged,  and  offered  for  sale  against  their  specific 
lands,  they  cease  to  be  jointly  injured.  The  doctrine  that 
parties  may  join  who  are  similarly  injured  by  one  act,  oper- 
ating on  all  precisely  alike,  cannot  be  safely  extended  to 
such  cases.  If  the  parties  are  not  affected  in  all  things  alike, 
they  must  sue  severally  or  not  at  all;  and  each  must  have  a 
grievance  which  equity  will  redress.  Where  the  land  is 
offered  for  sale  the  burden  no  longer  remains  in  a  roll  or 
assessment  on  which  all  are  common  debtors,  but  the  charges 
have  assumed  a  new  shape,  as  individual  assessments  on  the 
county  roll  for  sale,  where  there  is  nothing  to  show  their 
relative  proportions.  The  injury  to  each  is  one  to  the  title 
of  a  distinct  and  separate  freeholder,  for  which,  if  large 
enough,  he  might  sue  individually14.  A  township,  as  a 

10.  Youngblood    v.    Sexton,    32      Mich.   68. 

Mich.  406,  411.  13.     Starr      v.      Shepard,      145 

11.  Thomas    v.    Auditor    Gen-      Mich.  302. 

eral,  120  Mich.  535,  538;  Scofield          14.    Barker    v.    Vernon    Twp., 

v.   Lansing,    17    Mich.   436;    Zabel  63    Mich.    516,    519.      In    Brunner 

v.  Harshman,  68  Mich.  270.     See  v.    Bay    City,    46    Mich.,    236,    the 

restraining      expenditures,       §435,  city    had    become    the    purchaser, 

supra ;    Alpena   v.    Grcuit    Judge,  at  a  tax  sale,   of  lands   sold   for 

97  Mich.  550,  552.  delinquent  sewer  tax. 

12.  Henry      v.      Gregory,      29 


629  PLEADINGS,  ETC.  §§  444,  445 

municipality,  owns  no  land  to  be  injuriously  affected.  It 
cannot  maintain  a  bill  in  behalf  of  those  land  owners  in  the 
township  who  do  claim  to  be  injuriously  affected.  Each 
land  owner  may  maintain  a  suit  to  determine  that  question, 
but  the  township  cannot  interfere  and  impose  the  cost  of  such 
suit  upon  the  entire  township15.  Parties  whose  lands  will  be 
flooded  by  the  construction  of  a  drain,  though  their  land  is 
not  traversed  by  it,  may  file  a  bill  to  enjoin  its  construction1*. 

§444.     Parties. 

In  a  bill  to  set  aside  a  tax  for  local  improvements,  the  city 
should  be  made  a  party,  as  well  as  the  auditor  general,  where 
the  taxes  have  been  returned  to  him;  and  a  bill  of  review, 
after  decree,  will  lie  in  behalf  of  the  city  in  such  a  case17. 
When  the  jury,  in  a  street  opening  case,  do  not  make  the 
assessment,  a  tax  payer  whose  property  is  not  taken,  will 
not  be  heard  to  complain  of  the  condemnation  proceedings18. 
In  a  bill  to  quiet  title,  the  municipality  as  well  as  the  assess- 
ing officers,  should  be  made  a  party19. 

§445.     Parties  Defendant.     Chancery  Proceedings. 

After  lands  have  been  returned  delinquent,  the  auditor 
general  is  a  necessary  party  to  a  bill  with  the  county  treas- 
urer; the  latter  only  acts  as  the  agent  of  the  former.  A 
contractor  on  a  special  improvement  need  not  be  made  a 
party20.  In  a  bill  against  a  city  marshal  to  restrain  the  col- 
lection of  a  tax,  the  city  should  be  made  a  party.  Where  it 

15.  Swan       Creek      Twp.      v.     eral,   125   Mich.  621. 

Brown.  130  Mich.  380,  385;  din-  18.     Scotten     v.      Detroit,      10« 

ton  Twp.  v.  Teachout,  150  Mich.  Mich.  564. 

124.  19.    Thomas  v.   Gain,  35  Mich. 

16.  Smafield      v.      Smith,      153  155. 

Mich.  270.  20.    Palmer   v.    Rich,   12    Mich. 

17.  Maxwell    v.    Auditor   Gen-     414. 


§  645  THE  LAW  OF  TAXATION  630 

was  not,  the  bill  may  be  so  amended  on  the  hearing21.  A 
school  district  is  a  necessary  party  to  a  bill  praying  to  re- 
strain a  school  tax;  and  in  an  extreme  case  the  bill  may  be 
amended  after  the  hearing  in  the  supreme  court,  and  before 
final  decree  is  entered,  making  it  a  party22.  When  taxes  set 
aside  would  be  charged  back  to  the  county  or  township,  they 
are  necessary  parties.  On  appeal,  where  the  auditor  general 
alone  was  made  a  party,  the  record  was  remanded  with  per- 
mission to  amend23.  The  holder  of  an  inchoate  lien  for  taxes 
need  not,  but  may  be,  made  a  party  in  partition  proceed- 
ings24. But  the  holder  of  a  tax  title  is  not  a  proper  party 
to  a  mortgage  foreclosure25.  Persons  who,  before  suit,  had 
conveyed  away  all  of  their  interest  in  the  premises  in  ques- 
tion should  not  be  made  defendants.  The  fact  that  parties 
defendant  have  additional  claims  or  defenses  in  addition 
to  the  one  from  a  common  source,  does  not  make  a  bill  mul- 
tifarious because  it  seeks  to  dispose  of  all  objections  at  onct,. 
If  the  defendants  did  not  have  one  claim  under  one  common 
source  of  title,  and  claimed  distinct  parcels  of  the  same  piece, 
the  bill  would  be  multifarious26.  Persons  who  have  severed 
the  products  of  the  lands  held  under  tax  deeds,  or  who  have 
purchased  such  products,  are  not  proper  parties  to  a  bill  to 
set  aside  a  tax  deed.  They  can  only  be  reached  by  original 
proceedings27.  Where  a  defendant,  in  a  bill  to  quiet  title, 
disclaims  any  interest  in  the  property,  costs  should  not  be 
awarded  against  him28.  Where  a  tax  purchaser  has  sold  his 


21.  Thomas   v.   Gain,  35   Mich.  25.  Hayward     v.     Kinney,     84 
155;  Maxwell  v.  Auditor  General,  Mich.  591,  600. 

125   Mich.  621.  26.  Hammonree     v.     Lott,     40 

22.  Folkerts     v.      Powers,     42  Mich.  190. 

Mich.  283.  27.  Cook    v.    Hall,    123    Mich. 

23.  Adams  v.  Auditor  General,  378,  385. 

43  Mich.  453.  28.  Munroe    v.    Winegar,    128 

24.  Eberts  v.   Fisher,  44  Mich.  Mich.  309. 
551. 


631  PLEADINGS,  ETC.  §  446 

interest,  the  rights  of  the  vendee  can  only  be  litigated  in 
some  original  proceeding29. 

§446.     Auditor  General  as  Defendant. 

Where  a  bill  is  filed  before  sale  to  restrain  the  collection 
of  a  tax,  the  auditor  general  and  county  treasurer  are  proper 
parties  to  the  bill30.  While  the  auditor  general  may  be  made 
a  party  defendant  when  a  bill  is  filed  against  the  holder  of 
a  tax  deed,  he  is  not  a  necessary  party.  The  statute81,  con- 
templated that  a  sale  may  be  vacated  in  a  case  to  which  he 
is  not  a  party,  and  provides  that  he  shall  have  notice  of  that 
fact82.  In  a  bill  to  set  aside  a  tax  deed,  where  fraud  is 
alleged,  the  auditor  general  is  not  a  necessary  party  where 
the  bill  offers  to  pay  the  taxes.  He  is  only  interested  in  see- 
ing that  the  public  revenue  is  collected,  and  not  in  sustaining 
the  tax  deed.  In  such  a  bill  his  jurisdiction  is  not  ques- 
tioned33. Where  the  local  taxes  only  are  involved,  the  audi- 
tor general  is  not  a  necessary  party34.  Except,  however,  as 
the  statute  permits,  a  bill  cannot  be  maintained  against  the 
auditor  general  in  any  capacity  where  he  represents  the 
state35.  The  auditor  general  is  a  proper  party  to  a  petition 
for  a  writ  of  assistance.  Unless  he  is  made  a  party,  the 
state  cannot  be  compelled  to  reimburse  the  defeated  pur- 
chaser, if  the  writ  should  be  denied36.  Whether  or  not  he 
should  be  made  a  party  to  a  suit  in  ejectment,  the  court 

29.  Bending    v.    Auditor    Gen-  32.    Greenley     v.     Hovey,     115 
eral,   137   Mich.   500.  Mich.  504. 

30.  The    right    to    make    the  33.    Christian      v.      Soderberg. 
auditor  general  a  party  seems  to  118  Mich.  47. 

be  conferred  by  H.  S.  16626,  as  34.    Thomas    v.    Auditor    Gen- 
amended  by  Act  No.  260  of  Pub-  eral.  120  Mich.  535,  538. 
lie   Acts   of   1887;   Lake   Superior  35.     Burrill  v.  Auditor  General. 
Ship  Canal   Co.  v.  Auditor  Gen-  4fi  Mich.  257. 
eral,  79   Mich.  351,  354.  36.    Newton    v.    Auditor    G«n- 

31.  C.  L.  83898.  eral.  131  Mich.  547. 


§§  447,  448  THE  LAW  OF  TAXATION  632 

declines  to  determine37.  Neither  he,  nor  the  land  commis- 
sioner are  proper  parties  to  a  bill  to  litigate  the  question  of 
whether  or  not  a  deed  to  homestead  land  was  procured  by 
the  fraud  of  the  grantee38. 

§447.     Parties  Defendant  on  Drains. 

A  township  is  not  a  proper  party  in  a  suit  to  set  aside  a 
drain  tax.  The  tax  is  not  a  township  fund,  and  the  town- 
ship takes  no  part  in  the  proceeding39.  If  the  tax  has  been 
spread,  the  treasurer  and  the  commissioner  may  be  made  de- 
fendants to  a  bill40.  Under  the  law  of  1859,  the  auditor 
general  was  a  necessary  party41.  A  contractor  on  a  drain  is 
not  a  proper  party  in  a  suit  to  set  aside  the  proceedings42. 
Where  a  drain  traverses  two  counties,  both  commissioners 
should  be  made  parties  to  a  suit  to  set  aside  the  proceed- 
ings43. C.  L.  §4370,  requires  that  the  drain  commissioner 
shall  be  made  a  party  to  all  proceedings.  This  provision, 
however,  may  be  waived  by  the  parties44.  This  provision 
applies  to  an  action  against  the  collector  to  recover  money 
paid  under  protest45. 

§448.     Pleading.     Averments. 

The  complainant  should  point  out  and  establish  the  errors 
and  defects  upon  which  he  claims  the  right  to  have  the  pro- 
ceedings set  aside ;  and  if  he  fails  to  do  so,  the  court  of  chan- 

37.  Hoffman      v.      Silverthorn,      414. 

137   Mich.    60.  42.     Palmer   v.   Rich.,   12   Mich. 

38.  Dixon    v.     Ludington,     130      414. 

Mich.  269.  43.     Duflo     v.     Lillibridge,     114 

39.  See     Liability     of     Town-      Mich.    350. 

ships    §293,    supra.      C.    L.    §4369.  44.     Murphy     v.     Dobben,     137 

Barker  v.  Vernon  Twp.,  63  Mich.  Mich.  565. 

516,     519;     Emerson     v.     Walker  45.     Godkin   v.    Rutterbush,    147 

Twp.,   63   Mich.   483.  Mich.  116;  construing  C.  L.  §4370, 

40.  Frost     v.     Leatherman,     55  as  amended  by  Act  141  of  Public 
Mich.   33.  Acts  of   1899. 

41.  Palmer  v.    Rich.,    12   Mich. 


633  PLEADINGS,  ETC. 

eery  will  not  interfere  but  will  leave  him  to  his  remedy  at 
law.  Proceedings  instituted  under  authority  of  law  will  not 
be  arrested  upon  a  mere  suggestion  or  general  allegation  of 
irregularity,  nor  can  a  corporation,  upon  such  general  alle- 
gation, be  called  upon  to  show  that  its  proceedings  have  been 
in  all  respects  regular46.  The  bill  should  distinctly  allege 
the  part  or  portion  of  the  taxes  that  are  illegal,  and  ofter 
to  pay  the  balance47.  A  failure  to  offer  to  pay  the  cost  of 
a  tax  title,  in  a  bill  to  set  aside  a  tax  deed,  cannot  be  taken 
advantage  of  by  general,  but  a  special  demurrer  might  lie 
thereto48.  No  objections  will  be  considered  except  those 
set  up  in  the  answer  to  the  auditor  general's  petition49. 

£449.     Practice.     Amendments. 

It  is  within  the  discretion  of  the  court  to  allow  an  amend- 
ment to  a  bill,  even  to  the  extent  of  introducing  new  parties 
defendant,  at  any  time  before  the  final  decree50.  It  is  the 
duty  of  the  circuit  judge  to  allow  amendments  to  objections 
to  the  tax,  on  the  hearing  of  the  auditor  general's  petition51. 

§450.     Amendments  to  Bill. 

It  is  within  the  discretion  of  the  trial  court,  at  the  close 
of  the  testimony,  to  refuse  to  permit  a  complainant  to  amend 
his  bill  to  show  further  reasons  for  alleging  a  tax  invalid". 

46.  Williams      v.      Detroit,      2  man,     132     Mich.     198;     Auditor 
Mich.   561,   573;    Gamble   v.   East  General   v.  Chase.   132  Mich.  630. 
Saginaw,  43  Mich.  367.  50.    Thomas   v.   Gain.  35  Mich. 

47.  Jenks     v.     Hathaway,     48  155;     Folkerts     vs.     Powers.     42 
Mich.    536;    Conway   v.    Waverly  Mich.    283;     Adams    v.     Auditor 
Twp.,   15  Mich.  257;   Pillsbury  v.  General.  43  Mich.  453. 
Humphrey.    26    Mich.    245,    248 ;  51.    Auditor  General  v.  Jenken- 
Palmer    v.     Napoleon     Twp.,     16  son.   90   Mich.   523.   526;   Auditor 
Mich.  176;  Wager  v.  Bowley.  104  General    v.    Chandler,    108    Mich 
Mich.   39.  569. 

48.  Greenley     v.     Hovey,     115  52.     Walker     v.     Detroit.     186 
Mich.   504.  Mich.  6. 

49.  Auditor    General    v.    Hoff- 


§§  451,  452  THE  LAW  OF  TAXATION  634 

§451.     Practice.     Opening  Decree. 

All  owners  of  lands  described  in  the  auditor  general's 
petition  are  parties  to  the  proceedings,  whether  brought  in 
by  publication  or  personal  service.  As  between  any  of  them 
and  the  state,  the  court  might  hear  them  upon  petition,  unless 
a  point  had  been  reached  where  it  had  no  longer  authority 
to  vacate  or  alter  its  decree.  A  decree  on  default,  when 
not  enrolled,  may  be  opened  within  a  reasonable  time  on 
showing  an  adequate  excuse;  and  this  must  generally  be 
within  the  sound  discretion  of  the  court.  A  party  is  not 
deprived  of  this  remedy  because  third  parties  have  pur- 
chased in  reliance  upon  the  decree.  Such  persons  purchase 
at  the  risk  that  the  decree  may  be  set  aside53.  Only  ques- 
tions raised  in  the  lower  court  as  assigned  in  the  petition 
can  be  considered;  but  the  court  may  allow  an  amendment 
to  the  petition54.  Where  a  bill  of  review  is  dismissed,  the 
lower  court  should  award  costs55.  Leave  to  file  a  bill  of 
review  will  be  denied  when  the  party  delays  for  four  years 
after  he  knew  of  the  tax  sale,  though  had  he  acted  season- 
ably, the  sale  would  have  been  set  aside56.  The  court,  on 
a  petition  seasonably  made,  may  open  a  decree  which  was 
entered  in  vacation,  without  notice57. 

§452.     Evidence  Before  Jury. 

It  is  improper  to  show  that  land  was  transferred  for  the 
purpose  of  speculating  upon  a  street  opening.  The  bare 

53.     Benedict    v.    Auditor    Gen-  705. 

eral,  104  Mich.  267,  271;  In  Mor-  54.    Hall   v.    Mann,    118    Mich, 
gan    v.    Tweedle,    119    Mich.    350,  201,  204;  Baptist  Church  v.  Rob- 
paying  the  taxes  is  made  a  condi-  erts.  120  Mich.  705. 
tion  precedent  to  granting  relief.  55.     Phelps     v.     O'Connor,     137 
Waldron  v.  Auditor  General,  109  Mich.    625. 

Mich.    231 ;    Hilton    v.    Dumphey,  56.     Brown      v.      Napper,      143 

113      Mich.      241;      Kneeland     v.  Mich.   636.     See   §399,   supra. 

Hyman.   118    Mich.    56;     Baptist  57.    Hoffman  v.  Flint  Land  Co., 

Church    vs.    Roberts,    120    Mich.  144  Mich.  564. 


635  PLEADINGS,  ETC.  ;  \:>:', 

statement  of  a  witness  that  the  opening  of  a  public  street 
would  be  a  public  benefit  does  not  tend  to  show  a  public 
necessity.  The  jury  cannot  follow  its  judgment  in  relation 
to  values  in  opposition  to  the  undisputed  testimony.  Where 
a  taxing  district  is  established,  benefits  from  the  proposed 
improvement  cannot  be  taken  into  account  in  awarding  dam- 
ages68. 

§453.     Collateral  Attack  of  Decree. 

The  decree  cannot  be  impeached  in  any  collateral  proceed- 
ings, unless  the  record  shows  upon  its  face  a  lack  of  juris- 
diction. In  such  a  case  the  record  is  conclusive  of  its  own 
verity.  The  distinction  between  cases  where  the  validity 
of  the  record  of  a  court  of  general  jurisdiction  is  drawn  in 
question  collaterally,  and  those  in  which  such  record  is  di- 
rectly impeached  by  writ  of  error  or  bill  of  review,  is  broad 
and  well  defined.  In  the  one  case  jurisdiction  is  presumed 
prinia  facie,  and  unless  the  record  disproves  it,  while  in  the 
other,  if  it  is  denied,  its  existence  must  be  proved  by  the 
record  itself59.  Where  the  court  has  jurisdiction  of  the  par- 
ties and  the  subject  matter  in  the  particular  case,  its  judg- 
ment, unless  reversed  or  annulled  by  some  proper  proceed- 
ings, is  not  open  to  attack  or  impeachment,  by  parties  or 
privies,  in  any  collateral  action  or  proceeding  whatever. 
The  doctrine  is  firmly  established  that  if  the  court  in  which 
the  proceeding  took  place  had  jurisdiction  to  render  the 

58.  Chaffee's  Appeal,  56  Mich.  Dumphey,    113    Mich.    S41 ;    Car- 
244,  260.  pcntcr    v.    Auditor    General,    144 

59.  See  Ejectment,  §419.    Wil-  Mich.  251 ;  Hoffman  v.  Flint  Land 
kin   v.    Keith,    121    Mich.   66,   70;  Co..   144   Mich.   564,   holding  that 
Mayot    v.    Auditor    General,    140  filing  a  decree  in  vacation  did  not 
Mich.     593;     Treinble     v.     Long-  deprive  the  court  of  jurisdiction; 
worth,  13  Ohio  St.,  431 ;  Watts  v.  Owens    v.    Auditor    General.    147 
Bublitz,  99  Mich.  587;  Rumsey  v.  Mich.     683.     where     the     parties 
Griffin,   138  Mich.  413 ;   Hilton  v.  waited  12  years. 


§  453  THE  LAW  OF  TAXATION  636 

judgment  which  it  did,  no  error  in  the  proceedings  which 
did  not  effect  the  jurisdiction  k  will  render  the  proceeding 
void,  nor  can  such  errors  be  considered  when  brought  col- 
laterally into  question60.  The  principle  is  one  which  has 
been  adopted  in  the  interest, of  the  peace  of  society  and  the 
permanent  security  of  titles.  If,  after  the  rendition  of  a 
judgment  by  a  court  of  competent  jurisdiction,  and  after 
the  period  has  elapsed  when  (it  becomes  irreversible  for 
error,  another  court  may,  in  another  suit,  inquire  into  the 
irregularities  or  errors  in  such  judgment,  there  would  be 
no  end  to  litigation  and  no  fixed,  established  rights.  A 
judgment,  though  unreversed  and  irreversible,  would  no 
longer  be  a  final  adjudication  of  the  rights  of  litigants,  but 
the  starting  point  from  which  a  new  litigation  would  spring 
up;  acts  of  limitation  would  become  useless  and  nugatory; 
purchasers  on  the  faith  of  judicial  process  would  find  no 
protection;  every  right  established  by  a,  judgment  would  be 
insecure  and  uncertain;  and  a  cloud  would  rest  upon  every 
title61.  It  is  no  objection  to  the  application  of  this  principle 
that  the  proceeding  is  to  enforce  the  collection  of  delin- 
quent taxes.  While  great  accuracy  is  exacted  in  all  such 
proceedings,  and  strict  rules  are  applied  for  the  protection 
of  the  tax  payer,  this  principle,  forbidding  the  collateral  as- 
sailment  of  judgment,  has  often  been  successfully  invoked 
in  actions  of  this  nature.  It  has  accordingly  been  decided 
that  there  is  no  sound  reason  why  judicial  proceedings  for 
the  enforcement  of  taxes  should  be  exempted  from  its  in- 
fluence62. Upon  the  foregoing  principles,  in  a  bill  to  set 
aside  the  deed  of  the  auditor  general,  the  complainant  can- 
not impeach  the  decree  by  showing  that  the  amounts  marked 

60.  McGoon  v.   Scales,  9  Wall      Gratt,  729. 

30.  62.     Driggers     v.     Cassady,     71 

61.  Lancaster     v.     Wilson,     27     Ala.  533. 


PLEADINGS,  ETC. 

as  decreed  against  the  land  were  entered  after  the  signing 
of  the  decree,  though  in  a  direct  proceeding  such  facts  could 
be  shown68.  Neither  can  the  decree  be  attacked  because  state 
tax  lands  were  returned  and  included  in  the  auditor  gen- 
eral's  petition  and  sold84.  Where  one  sale  has  been  had  and 
cancelled  by  the  auditor  general,  and  a  second  sale  had  un- 
der a  new  decree,  the  landowner  cannot  complain,  because 
setting  aside  the  first  sale  did  not  injure  him  but  on  the 
contrary  extended  his  time  for  redemption65.  The  fact  that 
a  right  ,of  way,  not  owned  by  the  original  owner,  was  in- 
cluded in  the  description  of  the  land  assessed,  cannot  be 
set  up  collaterally  to  defeat  the  sale66.  The  charges  fixed 
in  the  decree  cannot  be  collaterally  attacked,  even  though 
not  correct.  The  auditor  general  cannot  afterwards  add 
charges  not  included  in  the  decree,  though  certain  statutory 
charges  had  been  omitted.  The.court,  having  had  jurisdic- 
tion of  the  matter,  its  judgment  is  final  unless  appealed 
from67.  Where  the  decree  omits  the  dollar  mark,  the  pro- 
ceedings have  no  validity  and  may  be  attacked  collaterally. 
See  §377  supra.  Although  the  taxes  have  been  paid  by 
the  owner,  be  cannot  collaterally  attack  the  decree  on  that 
ground.  His  remedy  is  to  apply  to  the  auditor  general  for  a 
cancellation  of  the  sale68. 


63.  Wilkins  v.  Keith,  121  Mich.  66.    Blowdin     v.     Griffin,     133 
66,    73 ;    Gates    v.    Johnson,    121  Mich.  647. 

Mich.  663,  666.  67.     Flint  Land  Co.  Lt.  v.  God- 

64.  See     Decree,      Particulars,  kin,  136  Mich.  668 ;  Smith  v.  Audi- 
§190,    supra.     Peninsular   Savings  tor  General,  138  Mich.  58S. 
Bank  v.  Ward,  118  Mich.  87,  93;  68.    Warren    v.    Auditor    Geti- 
Munroe    v.    Winegar,    128    Mich,  eral,    131    Mich.    263;    Smith    r. 
309.  Auditor  General.   138  Mich.  581; 

65.  Schaaf  v.  Auditor  General.  Blanchard    v.    Young,    in    Mich. 
146     Mich.     504;     Harrington    v.  619. 

Dickinson,  15  L.  N.  996. 


§§454,455  THE  LAW  OF  TAXATION  638 

§454.     Collateral  Attack  of  Drain  Proceedings. 

The  fact  that  a  commissioner  was  disqualified  to  hold  his 
office  has  been  shown  to  avoid  a  tax  levied  by  him69 ;  but 
such  fact  was  not  allowed  to  be  shown  in  a  collateral  attack 
upon  the  drain  proceedings  many  years  later,  in  an  attempt 
to  then  show  jurisdiction  in  the  township  drain  commis- 
sioner70. Defects,  if  they  do  not  relate  to  the  jurisdiction, 
are  not  reviewable  collaterally71. 

§455.     Collateral  Attack  of  Special  Assessments. 

A  tax  payer  on  a  public  improvement,  whose  property  is 
not  taken  but  is  assessed,  cannot  appeal  from  the  determina- 
tion of  the  sum  to  be  paid  for  the  land  taken72.'  Nor,  in  a 
street  opening  case,  can  such  a  tax  payer  assail  the  tax  be- 
cause he  was  not  given  notice  of  the  proceedings  before  the 
jury  in  condemning  the  land  and  awarding  damages73.  The 
fact  that  a  mortgagee  was  not  made  a  party  to  a  street  open- 
ing case  does  not  deprive  the  court  of  jurisdiction  as  to  the 
other  parties,  and  open  the  proceedings  to  collateral  attack74. 
The  determination  of  the  amount  that  ought  to  be  assessed 
against  a  particular  piece  of  property  is  one  of  those  func- 
tions of  administration  which  cannot  be  laid  upon  the  courts. 
An  assessment  must,  of  necessity,  deal  with  the  entire  ex- 
pense, and  act  upon  all  persons  and  property  concerned.  It 
cannot  be  made  by  separate  action  for  each  person,  or  each 
piece  of  land.  Each  person  shares  to  some  extent  on  the 
share  of  every  one  else;  and  any  attempt  at  a  partial  de- 

69.  Kinyon     v.     Duchene,     21  72.    Brown     v.     Saginaw,     107 
Mich.  497.  Mich.  643. 

70.  Zabel     v.     Harshman,     68  73.    Goodrich    v.     Detroit,     123 
Mich.  273.  Mich.    559;    Borgman    v.    Detroit, 

71.  Clark    v.    Teller,    50    Mich.  102  Mich.  261;  Scotten  v.  Detroit, 
618;    Clark    v.    Wiles,    54    Mich.  106  Mich.  562. 

323 ;  Freeman  v.  Weeks,  48  Mich.          74.     Smith  v.  Detroit,  120  Mich. 
255.  572. 


PLEADINGS,  ETC.  :    \:,>\ 

termination  would  be  impracticable.  The  court  will  review 
such  action  only  for  fraud75.  Upon  the  same  principle,  the 
court  will  not  review  the  determination  of  a  public  body  as 
to  the  necessity  of  a  public  improvement7*.  Neither  will  the 
court  determine  whether  or  not  an  assessing  officer  is  acting 
de  facto,  or  de  jure,  in  an  action  to  set  aside  the  tax77. 

§456.     Res  Adjudicata. 

\\  here  an  owner  of  land  files  a  bill  to  set  aside  a  tax 
deed  and  is  defeated,  he  cannot  thereafter,  for  a  reason  not 
specified  in  his  bill  to  which  the  auditor  general  was  a  party, 
compel  the  auditor  general  to  cancel  the  deed  for  a  reason 
not  specified  in  the  bill,  as  that  the  court  was  not  in  session 
five  days  after  the  time  fixed  for  hearing  the  petition  before 
entering  the  decree;  all  matters  prior  to  the  decree  are 
thereby  foreclosed78.  When  the  validity  of  a  decree  has 
been  sustained  in  an  application  for  a  writ  of  assistance,  the 
decree  cannot  thereafter,  though  for  different  reasons,  be 
attacked  in  an  action  of  ejectment.  Lack  of  jurisdiction  to 
enter  the  decree  may  be  shown  against  a  petition  for  the 
writ  of  assistance79.  Such  a  bill,  however,  is  not  res  jndicata 
as  to  matters  occurring  after  the  entry  of  the  decree  of  sale, 
as  a  sale  by  the  auditor  general  of  the  interest  of  the  state 
in  land  without  requiring  the  payment  of  accrued  taxes80. 
The  order  of  the  court  in  granting  or  denying  a  writ  of  as- 
sistance is  res  judicata  as  to  the  validity  of  the  title  in- 

75.  Manistee     v.     Hasley,     79         77.    Boehme    v.    Monroe    Qty. 
Mich.  238;  Powers  v.  Grand  Rap-      106  Mich.  401.  406. 

ids,  98  Mich.  393 ;  Nelson  v.  Sagi-  78.    Sayers  v.  Auditor  General, 

naw,    106    Mich.    659;    Walker   v.  124   Mich.  259. 

Detroit,  138  Mich.  639 ;  Walker  v.  79.     Peters      v.      Youngs,      13S 

Detroit.  138  Mich.  539.  Mich.  484;  Napper  v.  Fitrpmtnck. 

76.  Shimmons  v.  Saginaw,  104  139  Mich.  139. 

Mich.  512;  Davies  v.  Saginaw,  87  80.  Conley  v.  Auditor  General. 
Mich.  439.  123  Mich.  83. 


§  457  THE  LAW  OF  TAXATION  640 

volved81.  It  does  not  follow,  however,  that  because  a  man- 
damus is  denied  upon  some  application  the  court  passed 
upon  the  merits  of  the  application.  It  may  have  been  de- 
nied because  the  relator  had  a  manifest  legal  remedy,  or 
because  the  court  refused  to  exercise  its  discretion;  and  in 
either  case,  such  a  denial  would  not  be  decisive  of  the  legal 
rights  of  the  parties.  In  determining  the  grounds  upon 
which  an  application  was  denied,  or  granted,  the  court  is  not 
at  liberty  to  consult  its  own  recollection  as  to  the  ground 
upon  which  the  decision  was  made,  but  such  reasons  must 
be  found  in  the  record.  If  the  record  is  silent  as  to  the 
ground  upon  which  the  decision  rested,  a  proceeding  in 
mandamus  is  not  res  judicata  as  to  the  possible  matter  in- 
volved. While  there  are  authorities  which  hold  that  when 
several  issues  are  involved  and  presented,  and  a  general 
judgment  rendered,  it  will  be  presumed  that  all  issues  were 
decided  in  favor  of  the  prevailing  party.  The  weight  of 
authority  seems  to  be  opposed  to  this  rule,  and  casts  upon 
the  party  asserting  that  such  a  judgment  determined  a  par- 
ticular issue  the  burden  of  proving  it82.  The  dismissal  of  a 
bill  to  quiet  title  will  not  prevent  any  defense  at  law  against 
tax  titles83.  The  finding  of  the  probate  court  as  to  the 
amount  of  an  estate  subject  to  the  inheritance  tax,  is  not  con- 
clusive upon  the  taxing  officers  of  a  district84. 

§457.     Res  Judicata  in  Drain  Proceedings. 

Questions  reviewed  upon  a  writ  of  certiorari  to  man- 
damus proceedings  are  res  judicata85.    In  two  suits  between 

81.  Newton    v.    Auditor    Gen-  84.     Port  Huron  v.  Wright,  150 
eral,  131  Mich.  547.  Mich.  279. 

82.  Hoffman  v.  Silverthorn,  137  85.     Smith  v.  Carlow,  114  Mich. 
Mich.  60.  67.     This  is  the  personal  opinion 

83.  Gamble    v.    East    Saginaw,  of  Justice  Grant. 
43  Mich.  367,  369. 


'•H  PLEADINGS,  ETC.  §§   1  :.- 

the  same  parties,  where  the  same  question  is  in  issue,  the 
first  suit  is  res  jitdicata.  Objections  purposely  withheld  ii. 
the  first  suit  cannot  be  raised  in  the  second  suit**.  Wrong 
reasons  for  a  right  decree  do  not  render  a  matter  res  judicata 
as  to  matters  not  necessary  for  the  decree  to  be  sustained87. 

^458.     Evidence.     Certificates,  Etc. 

A  collector's  receipt  is  an  official  paper,  and  is  the  evidence 
of  the  payment  of  the  tax  as  between  third  parties** ;  but 
such  receipts  are  not  evidence  to  prove  a  lien  for  taxes  paid 
by  tax  title  holders.  This  fact  must  be  proved  by  the  roll"". 
The  certificate  of  the  township  clerk  is  no  evidence  of  state 
or  county  taxes90.  The  supervisor's  certificate  on  the  tax 
roll  in  the  treasurer's  office  is  not  evidence  of  the  certificate 
on  the  original  roll01.  The  certificate  of  the  board  of  state 
tax  commissioners  is  void  for  uncertainty  where  the  record 
does  not  show  the  adjournments  had92. 

§459.     Evidence.     Tax  Roll. 

A  tax  roll,  under  C.  L.  1871,  §  1016,  is  prima  facie  evi- 
dence of  the  validity  of  the  assessments93.  But  in  an  action 
against  the  supervisor  for  directing  the  collection  of  illegal 
taxes,  the  collectors  roll  is  not  prima  facie  evidence  of  the 
regularity  of  the  taxes94. 

86.  Clark    v.    Wiles,    54    Mich.  91.     Redding  v.  Lamb,  si  Mich. 
323.  318. 

87.  Zabel     v.      Harshman,     68  92.     Delray  Land  Co.  v.  Spring- 
Midi.  273.  wells  Twp..  149  Mich.  397. 

88.  Johnstone      v.      Scott,      11  93.     Wattles  v.  Lapeer.  40  Mich 
Mich.  232.  624;    Hood    v.   Judkins.   81    Mich 

89.  Weimer  v.  Porter,  42  Mich.  318.     See    Presumptions;   Assess- 
569.  ment. 

90.  Boyce  v.  Sebring,  66  Mich.  94.    Gark   v.    Axford,   5    Mich. 
210.  182. 

(41) 


§  459  THE  LAW   OF  TAXATION  642 

APPENDIX  A. 
Form  of  Resolution  Authorizing  Bonds. 

Resolved,  That  it  is  the  intention  of  this  counsel  to  issue 

bonds  in  the  sum  of dollars,  (place  the  amount 

to  be  raised  by  the  city  at  large)  pledging  the  faith  and  credit 

of for  the  payment  thereof.  $aid  bonds  shall 

draw  Q%  interest  per  annum,  payable  annually  from  and 
after  the day  of 

The  principal  shall  be  payable  as  follows The 

denomination  of  such  bonds  may  be  made  in  sums  from 
$100.00  upwards,  to  suit  the  purchaser. 

It  is  also  the  intention  of  this  counsel  to  issue  the  bonds 

of  the  said  city  of in  the  sum  of Dollars 

(amount  raised  by  special  assessment),  bearing  interest  at 
the  rate  of  Q%  per  annum,  payable  annually,  pledging  the 
faith  and  credit  of  said  city  for  the  payment  of  said  bonds 
out  of  the  deferred  payment  of  the  assessment  levied  upon 

special district  No in  said  city.  Said 

bonds  shall  be  divided  into  four  equal  parts,  running  1,  2,  3, 

and  4  years  respectively  from  the day  of ; 

and  all  payments  made  on  the  deferred  installments  of  the 

assessment  of  said  special district  No of 

said  city  shall  be  paid  into  and  constitute  a  sinking  fund  for 
the  payment  of  the  said  bonds  at  maturity.  And  the  Mayor 
and  the  Clerk  of  this  counsel  are  hereby  authorised  to  pre- 
pare and  execute  such  bonds,  according  to  the  foregoing 
terms,  when  the  same  shall  have  been  sold  after  public  notice 
given. 


TABLE  OF  CASES 


TABLE  OF  CASES 


[REFERENCES  ARE  TO  SECTIONS] 

Adams  v.  Bay  City,  78  Mich.  211   351,  368,  370,  375 

Acton  v.  Blumdell,  12  M.  &  W.  324  315 

Adams  v.  Auditor  General,  43  Mich.  453  445,  449 

Adams  Co.  v.  Quincy,  130  111.  566 317,  344 

Adkin  v.    Pillien,  136  Mich.  682    198 

Affeld  v.  Detroit,  112  Mich.  560  293,  368 

Aitcherson  v.  Huebner,  90  Mich.  643  

Albany,  etc.,  Mining  Co.  v.  Auditor  General,  37  Mich.  395 95,  98,  437 

Albany  v.  Gibson,  12  L.  N.  642,  141  Mich.  698 250.  2S5.  288,  303 

Albion  v.  Boldt,  145  Mich.  285 20 

Alcona  Co.  v.  Auditor  General,  136  Mich.  130 196,  395 

Alcona  Co.  v.  Auditor  General,  138  Mich.  491   53 

Alcona  Co.  v.  White,  54  Mich.  503   125.  422 

Alexander  v.  McClear,  146  Mich.  45  243,  258,  302 

Alger  v.  Slaght,  64  Mich.  589  245,  291 

Allen  v.  Bean,  8  Biss.  83   155,  43* 

Allen  v.  Cowley,  J28  Mich.  530  197.  389 

Allen  v.  Munson,  46  Mich.  138  268 

Allured  v.  Valler.  1 12  Mich.  357 390 

Allport  v.  Murphy,  15  L.  N.  496,  153  Mich.  486 19 

Alma  v.  Clow,  146  Mich.  443  19 

Alpena  v.  Circuit  Judge,  97  Mich.  550 443,  445 

Alpena  Water  Co.  v.  Alpena,  130  Mich.  518 57 

Alvord  v.  Collins,  20  Pick.  418  104,  138 

Amberg  v.  Rogers,  9  Mich.  332  83,  204,  209 

Ambler  v.  Auditor  General,  38  Mich.  746  171.  407,  414 

Amperse  v.  Kalamazoo,  75  Mich.  228,  234    15,  24 

Amy  v.  Supervisors,  1 1  Wall.  136  153,  174 

Anderson  v.  Courtwright,  47  Mich.  161   411.  419 

Anderson  v.  Hill.  54  Mich.  478 3,  «,  169.  S91.  293.  302 

Anderson  v.  LaGrange  Twp.,  2  Mich.  188  169 

Angell  v.  Courtright,  111  Mich.  223 250.  286.  t88,  414 

Anketell  v.  Hayward,  119  Mich.  525   WT.  278.  S85 

Applegate  v.  Ernst,  3  Bush.  648  164 

Arnold  v.  Cambridge.  106  Mass.  352  817 

Arnold  v.  Decatur  Village.  29  Mich.  77 260 

Ash  v.  People,  1 1  Mich.  347  19 

Ashley  v.  Port  Huron,  35  Mich.  296  SOS 

Astor  v.  New  York,  62  N.  Y.  580  .' 219,  «71 

Atkins  v.  Hinman,  2  Gilmore,  251 §t 

Attorney  General  v.  A.  P.  Cook  Co..  122  Mich.  453  54.  144 


TABLE   OF    CASES  646 

[REFERENCES  ARE  TO  SECTIONS] 

Attorney  General  v.  Bay  Co.,  34  Mich.  346  4,  126,  136,  238 

Attorney  General  v.  Burbank,  12  L.  N.,  518;  141  Mich.  438 243 

Attorney  General  v.  Burrell,  31  Mich.  25  8 

Attorney  General  v.  Detroit,  26  Mich.  263 360,  414 

Attorney  General  v.  Detroit,  153  Mich.  525  362 

Attorney  General  v.  Detroit,  113  Mich.  388  37,  59 

Attorney  General  v.  Huebner,  91  Mich.  436 24 

Attorney  General  v.  Lake  Superior  Ship  Canal  Co.,  32  Mich.  233.  214 

Attorney  General  v.  McClear,  146  Mich.  45  243,  246,  302 

Attorney  General  v.  Mich.  Central  R.  Co.,  13  L.  N.  552;  145  Mich. 

14  • 32 

Attorney  General  v.  Oakman,  126  Mich.  717  113 

Attorney  General  v.  Pingree,  120  Mich.  550  6,  11 

Attorney  General  v.  Sanilac  Co.,  42  Mich.  72 .92,  96,  106 

Attorney  General  v.  Sanilac  Co.,  71  Mich.  16,  59  12,  14,  63 

Attorney  General  v.  St.  Clair  Co.,  30  Mich.  388..  152,  168,  171,  173,  415 
Attorney  General  v.  State  Board  of  Assessors,  12  L.  N.  910,  143 

Mich.  73  32 

Attorney  General  v.  Stryker,  12  L.  N.  418,  141  Mich.  437 243 

Atwell  v.  Barnes,  109  Mich.  10  226 

Atwell  v.  Zeliff,  26  Mich.  118  153,  159,  160,  283,  413 

Auditor  General  v.  Ayres,  109  Mich.  694  96,  102,  106 

Auditor  General  v.  Ayres,  122  Mich.  136  106 

Auditor  General  v.  Baker,  84  Mich.  113  380,  391 

Auditor  General  v.  Bay  Co.,  106  Mich.  662 

171,  172,  212,  219,  227,  407,  414 

Auditor  General  v.  Bolt,  124  Mich.  185  171 

Auditor  General  v.  Bolt,  13  L.  N.  1064,  147  Mich.  283.. 243,  251,  424 

Auditor  General  v.  Buckeye  Iron  Co.  132  Mich.  454  94,  222 

Auditor  General  v.  Calkins,  136  Mich.  1 338,  341,  344,  373,  375,  376 

Auditor  General  v.  Carpenter,  138  Mich.  669  143,  386 

Auditor  General  v.  Chandler,  108  Mich.  569  98,  386,  449 

Auditor  General  v.  Chase,  132  Mich.  630  322,  324,  448 

Auditor  General  v.  Clifford,  13  L.  N.  127,  143  Mich.  626 143,  207 

Auditor  General  v.  Crane,  15  L.  N.  110 ,  152  Mich.  94 425 

Auditor  General  v.  Duluth,  etc.,  R.  Co.,  116  Mich.  122 <, 

117,  121,  123,  129,  223 

Auditor  General  v.  Fisher,  84  Mich.  128 318,  370 

Auditor  General  v.  Fleming,  12  L.  N.  605 ,  142  Mich.  12 105 

Auditor  General  v.  Flint  &  P.  M.  R.  Co.,  114  Mich.  682 33,  60 

Auditor  General  v.  Flint  &  P.  M.  R.  Co.,  119  Mich.  682 33,  60 

Auditor  General  v.  Grand  Traverse  Co.,  73  Mich.  182 171,  172,  407 

Auditor  General  v.  Griffin,  140  Mich.  427 90,  106,  107,  108,  386,  391 

Auditor  General  v.  Guerney,  109  Mich.  472  108 

Auditor  General  v.  Hill,  97  Mich.  80  109,  236 

Auditor  General  v.  Hill,  98  Mich.  236  138,  238 

Auditor  General  v.  Hoffman,  129  Mich.  541  18,  328 

Auditor  General  v.  Hoffman,  132  Mich.  198 

318,  239,  341,  355,  357,  373,  374,  448 

Auditor  General  v.  Hughitt,  132  Mich.  311  50 

Auditor  General  v.  Hutchinson,  113  Mich.  245 

117,   119,   140,    174,   222,   384 


647  TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS) 

Auditor  General  v.  losco  Judge,  58  Mich.  345  

Auditor  General  v.  Iron  Co.,  123  Mich.  .v_'l .     92 

Auditor  General  v.  Jackson  Board,  24  Mich.  237  .  .110 

Auditor  General  v.  Jenkenson,  90  Mich.  523,  277 92,  96,  386,  449 

Auditor  General  v.  Kanaar,  114  Mich.  602  398 

Auditor  General  v.  Keweenaw  Ass'n,  107  Mich.  405   

78,  83,   176,   177,  222 

Auditor  General  v.  Lake  George,  etc.,  R.  Co.,  82  Mich.  420 

146,    147.    164,   239,   405 

Auditor  General  v.  Longyear,  110  Mich.  223 

46,   106,   116,    124.    174,   233.   241,  222 

Auditor  General  v.  McArthur,  87  Mich.  457 104,  119,  130,  138,  238 

Auditor   General    v.    McLaulin    83    Mich.   352    384 

Auditor  General  v.  Meier,  95  Mich.  127  240,  391 

Auditor  General  v.   Melze,   124   Mich.  285   226.  2* 

Auditor  General  v.  Menominee  Co.,  89  Mich.  553   44,  45,   110 

Auditor  General  v.  Merriam,  14  L.  N.  6 ,  147  Mich.  630 

Auditor  General  v.  Midland  Co.,  84  Mich.  121 171.  199 

Auditor  General  v.  Monroe  County.  36  Mich.  70 110,  171,  199,  414 

Auditor  General  v.  Newman,   135  Mich.  288   143,  196,  207 

Auditor  General  v.  Norrington,  12  L.  N.  200,  140  Mich.  427 

106,    107,    108,   247,   294,   386 

Auditor  General  v.  O'Connor,  83  Mich.  464 199 

Auditor  General  v.  O'Neil,  12  L.  N.  1013,  143  Mich.  343 353,  356 

Auditor  General  v.  Ottawa  Co.,  76  Mich.  293  171,  199,  414 

Auditor  General  v.   Patterson,  122  Mich.  39 143,  212 

Auditor  General  v.  Pioneer  Iron  Co.,  123  Mich.  521 87 

Auditor  General  v.  Prescott,  94  Mich.  190 92.    96 

Auditor  General  v.  Pulman  Car  Co.,  934  Mich.  59 32 

Auditor  General  v.  Regents.  83  Mich.  467   58 

Auditor  General  v.  Roberts.  83  Mich.  471  107 

Auditor  General  v.  Sage  Land  Co.,  129  Mich.  182  76 

Auditor  General  v.  Saginaw  Co..  62  Mich.  579 110.  171,  199.  407.  414 

Auditor  General  v.  Scully,  124  Mich.  285  226 

Auditor  General  v.  Sessions,  100  Mich.  343 84,  95 

Auditor  General  v.  Sherman,  136  Mich.  157  143.  197 

Auditor  General  v.  Shiawassee  Co.,  74  Mich.  536 

170.   171,   172.   199.  217,  218.   414 

Auditor  General  v.  Slowman.  84  Mich.  118  377 

Auditor  General  v.  Smith.  125  Mich.  576  81,  359 

Auditor  General  v.  Sparrow,  116  Mich.  574 

..82,    84,    96,    99,    101.    106.    117.    119.    123.    130.    148.    161. 

174,  186.  S22,  223.  388 

Auditor  General  v.  Stiles.  83  Mich.  460  . .  .90.  95.  149.  378.  386,  391.  43fi 
Auditor  General  v.  Stoddard.  13  L.  N.  1062,  147  Mich.  329... 341.  360 

Auditor  General  v.  Tubble.  146  Mich.  106 105 

Auditor  General  v.  Van  Tassell.  73  Mich.  28 171.  172.  407 

Auditor  General  v.  Wiley.  89  Mich.  58  ....380,  383.  385.  388,  394.  419 

Auditor  General   v.   Williams.  94   Mich.   180 58 

Auditor  General  v.  Women's  Christian  Temp.  Union.  119  Mich.  430  59 

.Aurora  Iron  Co.  v.  Ironwood.  119  Mich.  325 96,  160 

Austin  v.  Hyndman,   119  Mich.  615   52 


TABLE   OF    CASES  648 

[REFERENCES  ARE  TO  SECTIONS] 

Averall  v.   Bizeau,  37  Mich.  506 23 

Avery  v.   Dewitt,  72  Mich.  25    75 

Avery  v.  East  Saginaw,  44  Mich.  587 89,    95 

Avery  v.  Judd,  21  Wis.  262    184 

Aztec  Copper  Co.  v.  Auditor  General,  128  Mich.  615 

196,  200,  212,  389,  393,  399 


B 

Baars  v.  Grand  Rapids,  129  Mich.  572 63,  76,  78 

Babcock  v.  Beaver  Creek  Twp.,  64  Mich.  601 74,  158,  159,  160 

Babcock  v.  Beaver  Creek  Twp.,  65  Mich.  479 157,  159 

Backus  v.   Carlton,   99   Mich.  218 173 

Bacon  v.  Kennedy,  56  Mich.  329   341 

Bacon  v.  Tax  Commissioners,  126  Mich.  22 12,  65,  73 

Bagg  v.  Detroit,  5  Mich.  336 325 

Baiker  v.  Heseltine,  27  Me.  354  79 

Bailey  v.  Haywood,   70   Mich.   188 142,  174 

Bailey  v.  Mayor  of  New  York,  3  Hill  531 329 

Bailey  v.  Bay  City,  11  L.  N.  927,  139  Mich.  495 97,  409 

Bailey  v.   Circuit  Judge,   128  Mich.  627    24 

Baisch  v.  Grand  Rapids,  84  Mich.  666 321,337 

Baker  v.  Big  Rapids,  65  Mich.  176   157 

Baker  v.  Union  Trust  Co.,  129  Mich.  581   189 

Bakker  v.  Fellows,  15  L.  N.  546 ,  153  Mich.  428, 250 

Balch  v.   Detroit,   109  Mich.  251 415 

Baldwin  v.  Ely,      66   Wis.    171    198,  199 

Baldwin  v.  Hastings,    83    Mich.    639    57 

Balfour  v.  Whitman,  89  Mich.  202    200 

Ball  v.   Auditor  General,   133   Mich.   521 212 

Ball  v.  Busch,    64    Mich.    337    209,     212 

Ball  v.  Copper  Co.,  118  Mich.  7   99,  205,  383,  391,  401,  404 

Ball  v.  Harpham,  12  L.  N..  303 ,  140  Mich.  661 184 

Ballance  v.  Forsyth,   12  How.   18 185 

Bangor  Twp.  v.  Smith  Trans.  Co.,  106  Mich.  223 49,  174,  175,  405 

Bangor  Twp.  v.  Smith  Trans.  Co.,   112   Mich.   601    143,  405 

Barhagel  v.  School   Board,    134   Mich.   455 414 

Bank  v.  Douglass,  3   Dill.  330    ; 68 

Bank  v.  Kimball,   103   U.   S.  735    92 

Bark  Tax    Case,   2   Wall.   200    1 

Barker  v.   Caldwell,  3   Minn.  94    70 

Baptist  Church  v.  Roberts,  120  Mich.  704 227,  386,  391,  398 

Barker  v.  Vernon  Twp.,  63  Mich.  516 

226,   258,   261,   283,  293,   304.  443,   447 

Barnhard   v.   Whitecloud,   108   Mich.  508 158 

Barmim  v.  Barnes,  118  Mich.  264   377,  388,  391,  394 

Barstow  v.  Big  Rapids,  56  Mich.  35   _. 75 

Bartemeyer  v.  Iowa,  18  Wall.  129   20 

Bartlett  v.  Austin- Western  Co.,  13  L.  N.  940,  147  Mich.  58 432 

Bateson  v.  Detroit,  13  L.  N.  66,  143  Mich.  582   155.  157 

Bateson  v.  Phelps,  13  L.  N.  626 ,  145  Mich.  605  157' 


l!4!>  TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS) 
Fattle  Creek  Sanitarium,  etc.  v.  Battle  Creek,  138  Mich.  «7« 

59,    155,    158.    409 

Bay  City  v.  State  Treasurer,  23  Mich.  499  '.< 

Bay  City  Traction  Co.,  etc.  v.  Bay  City,  15  L.  N.  1039  .332 

Bay  County  v.  Arenac  County,  112  Mich.  105 171.  .'17 

Beadle  v.  Arnot,  13  L.  N.  531 ,  145  Mich.  416 

Beard  v.   Sharrick,  67  Mich.  321 200,  211,  212.  420 

Beardsley  v.  Ontario  Bank,  31   Barb.  619 164 

Beaton  v.  Inland  Twp.,  149  Mich.  558   163 

Beaver  Creek  Twp.  v.  Hastings,  52  Mich.  528  113 

Bechtel  v.  Neilson,  19  Wis.  59  133 

Beck  v.  Finn,  122  Mich.  21 401 

Beebe  v.  Land  Com'r.,  137  Mich.  48  M 

Beecher  v.  Common  Council,  114  Mich.  228  73 

Beecher  v.  Detroit,  92  Mich.  268...; 334.  351.  353,  355.  376 

Beecher  v.  Detroit,   110  Mich.  456    63,  71 

Beidler  Mfg.  Co.  v.  Muskegon.  63  Mich.  44 349 

Bemis  v.  Boston,  14  Allen  366  94 

Bench  v.  Otis,  25  Mich.  29   266.  268 

Bending  v.  Auditor  General,  137  Mich.  500   399,  445 

Benedict  v.  Auditor  General,  104  Mich.  269   223,  237.  385,  391,  451 

Beniteau  v.  Detroit,  41  Mich.  116 322,  340,  343.  344,  360,  371 

Benjamin  v.  Webster,  100  Ind.  15   25 

Bennett   v.    Benfield,  80   Mich.  265    242 

Bennett  v.  Drain  Com'r.  56  Mich.  634 249.  267,  268,  271.  280 

Bennett  v.  Scully.  56  Mich.  374  280,  425,  447 

Berkey  v.  Burchard,  119  Mich.  101   197,  391,  400 

Berrien   Treasurer  v.   Bunbury,  45   Mich.  79    ..146,   152,   163,   173.  405 

Berry  v.  Tinsman,  108  Mich.  672   248,  255,  426 

Bertram  v.  Cook.  32  Mich.  518  188 

Besse  v.  Crotty  Village.  93  III.  180   25 

Belts  v.  Probate  Judge,  54  Mich.  608  265 

Betts  v.  Reading.  93  Mich.  77  19.  154 

Big  Rapids  v.   Supervisors.  99  Mich.  351 347.  371 

Biggs  v.  McKinlcy,  131  Mich.  154 24 

Bills  v.   Belknap,  38  la.  225   133 

Bills  v.   Goshen,   117   Ind.   226   25 

Bird  v.  Perkins.  33  Mich.  28  46,  47,  83,  93,  100.  139.  150.  151. 153.  163.411 

Bishop  v.  Lambert.  114  Mich.  110  120 

Bixby  v.  Goss,  54  Mich.  521    264.  265.  375.  414 

Blackstone  v.  Miller,  188  U.  S.  189 40 

Blackwood  v.  Van  Vleit.  30  Mich.  118  184,  185,  209 

Blades  v.  Water  Co..  122  Mich.  366   829 

Blair  v.  Forehand.  100  Mass.  136  1S2 

B'arke  v.  Grondin,  12  L.  N.  353,  141   Mich.  104 196,  413 

Blakely  v.  Bestor,  13  111.  713  82 

Blanchard  v.  Powers.  42  Mich.  619  102,  234 

Blanchard  v.  Young.  15  L.  N.  254,  132  Mich.  619 4O4.  453 

Bland  v.  Hixenbaugh,  39  la.  536  

Blights  Lessee  v.  Rochester.  7  Wheat.  548  \M 

Bliss  v.  Greeley.  45  N.  Y.  671  

Blodgett  v.  Muskegon,  60  Mich.  580  78 


TABLE   OF    CASES  650 

[REFERENCES  ARE  TO  SECTIONS] 

Blondin  v.  Griffin,  133  Mich.  647  290,  398,  453 

Bloomindale  v.  Chittenden,  75  Mich.  305  385 

Blue  Iron  Mining  Co.  v.  Negaunee,  105  Mich.  317 100,  222 

Blumfield  Twp.  v.  Brown,  130  Mich.  504  424 

Board  of  Auditors  v.  Benoit,  20  Mich.  176 44 

Board  of  Education  v.  Assessors,  133  Mich.  116  32 

Board  of  Education  v.  Rummels,  57  Mich.  46  414 

Board  of  Park  Com'rs  v.  Detroit  Council,  28  Mich.  228 329,  373 

Board  of  Sup'rs  v.  Auditor  General,  65  Mich.  408 57 

Board  of  Sup'rs  v.  Judge,  111  Mich.  33  138 

Board  of  Sup'rs  v.  Mentor  Twp.,  94  Mich.  386  10 

Board  of  Sup'rs  v.  Stimson,  4  Hill  136 146 

Board  of  Sup'rs  v.  Warren,  98  Mich.  144  137 

Board  of  Water  Com'rs  v.  Auditor  General,  115  Mich.  546  58 

Boardman  v.  Beckwith,  18  la.  292 219 

Boardman  v.  Boozewinkle,  121  Mich.  320  184,  197,  206,  419 

Boardman  Twp.  v.  Flagg,  70  Mich.  372  152,  166 

Boehme  v.  Monroe  City,  106  Mich.  401  

235,  320,  330,  333,  344,  347,  349,  350,  352,  356,  374,  438 

Boehmer  v.  Schuylkill  Co.,  46  Pa.  St.  452 152 

Bogert  v.  Circuit  Judge  118  Mich.  457  415 

Bolton  v.  Williamson,  1  Brev.  181  153 

Bonaparte  Tax  Court,  104  U.  S.  594  65 

Bond  v.  Kenoshee,  17  Wis.  288  437 

Borgman  v.  Detroit,  102  Mich.  261  323,  339,  438 

Borroughs  v.  Goff,  64,  Mich.  464  142 

Boston  v.  Beal,  51  Fed.  R.  306  68,  147 

Boston,  etc.,  R.  Co.  v.  Gilmore,  37  N.  H.  410 .  164 

Boucher  v.  Trembley,  12  L.  N.  184,  140  Mich.  352 197,  207,  213 

Boussneur  v.  Detroit,  15  L.  N.  568,  153  Mich.  585 323,  344 

Bowles  v.  Perrin,  47  Mich.  154 269 

Bowman  v.  Judge,  129  Mich.  608  83 

Boyce  v.  Auditor  General,  90  Mich.  314 

104,  106,  109,  114,  119,  126,  136,  137,  138,  236,  240 

Boyce  v.  Cutler,  70  Mich.  539 77 

Boyce  v.  Peterson,  84  Mich.  490  86,  118,  222,  414 

Boyce  v.  Sebring,  66  Mich.  210 

100,  104,  106,  136,  137,  138,  139,  142,  241,  458 

Boyce  v.  Stevens,  86  Mich.  549 174,  405,  411 

Boyd  v.  Conklin  54  Mich.  583  314 

Boyden  v.  Walkley,  113  Mich.  609  306 

Boynton  v.  Veldman,  131  Mich.  155 186,  188 

Bradley  v.  Bander,  36  Ohio  St.  28  65,  78 

Bradley  v.  Bouchard,  85  Mich.  18  222 

Bradley  v.  People,  4  Wall.  459  69 

Bradley  v.  Williams,  11  L.  N.  818 ,  139  Mich.  230 253,  255 

Brady  v.  Hayward,  114  Mich.  326 245,  246,  248,  250,  259,  261,  281, 

282,  298,  300,  302,  424,  426 

Breen  v.  Hyde,  130'  Mich.  1  314 

Brennan  v.  Bay  City,  46  Mich.  236  442 

Brennan  v.  Titusville,  153  U.  S.  289  17 

Bressler  v.  Ellis,  46  Mich.  335  .425 


651  TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Brevoort  v.  Detroit,  24  Mich.  322   325,  359,  360 

Brewster  v.  Springfield,  97  Mass.  152  

Briggs  v.  Boardman,  135  Mich.  329  2S2 

Briggs  v.  Gulick,  13  L.  N.  34 ,  143  Mich.  457 107,  215,  401 

Bristol  v.  Johnson,  34  Mich.  123  153,  220,  437 

Britton  v.  Kerry,  14  Mich.  53.  

Broadhead  v.  Milwaukee,  19  Wis.  652 4 

Broadway,  In  Re,  63  Barb.  472 272 

Brockway  v.   Petted,  79  Mich.  »>:.'()    

Brooks  v.  Arenac  Twp.,  71  Mich.  231 77.88,94 

Brooks  v.  Auditor  General,  119  Mich.  329  3S5,  391 

Brooks  v.  Mangan,  86  Mich.  576  18,  19 

Brown  v.  Avery,  119  Mich.  384  1M 

Brown   v.    Brogan,    119   Mich.   218    187 

Brown  v.  Circuit  Judge,  13  L.  N.  507 ,  145  Mich.  413 1C 

Brown  v.  Grand  Rapids,  83  Mich.  101   94,  376 

Brown  v.  Hackett,  128  Mich.  141   226 

Brown  v.  Houghton  Mining  Co.,  123  Mich.  117 389 

Brown  v.  Knapp,  54  Mich.  132  24 

Brown  v.  Lester,  21  Mass.  392  153.  174 

Brown  v.  Maryland,  12  Wheat.  454 18 

Brown  v.  Napper,  125  Mich.  157  389 

Brown  v.   Napper,  143  Mich.  636   400,  451 

Brown  v.  Nehmer,  128  Mich.  690  287 

Brown  v.  Saginaw,  107  Mich.  643  353,  355,  374,  438 

Brownell  v.  Gratiot  Board,  49  Mich.  414   291 

Bruggink  v.  Thomas,  125  Mich.  9   309 

Brunner  v.  Bay  City,  46  Mich.  236  457 

Bryant  v.  Estabrook,  16  Neb.  222  143 

Bryn  Water  Co.  v.  Merion  Twp.,  4  Pa.  Dist.  R.  157 137 

Buckhaven  v.  Ruggles,  15  Mass.  182  44 

Buel  v.  Irwin,  24  Mich.  145  142.  149,  420 

Buhrer  v.  Baldwin,  137  Mich.  263 405 

Bulkley  v.  Steward,  1  Day  133  157 

Bull  v.  Quincy,  9  111.  App.  131    t5 

Bullock  v.  Auditor  General,  12  L.  N.  668,  142  Mich.  122 15« 

Bump  v.  Jepson,  106  Mich.  641  286,  290.  294,  397 

Burnett  v.  Scully,  56  Mich.  374  280,  42.'..  4-".' 

Burns  v.  Ford,  124  Mich.  274  381,  384,  391,  395 

Burrill  v.  Auditor  General,  46  Mich.  256  407,  446 

Burroughs  v.  Goflf,  64  Mich.  464    79,  142.  203 

Burroughs  v.   Saterlee,  67  la.  396   315 

Burrows  v.  Gibson,  42   Mich.   121    84 

Burt  v.  Auditor  General,  39  Mich.  126  101,  109.236 

Burton  v.  Tuite,  78  Mich.  363   231 

Busch  v.  Nester,  62  Mich.  383  197 

Butler  v.  Detroit,  43  Mich.  552  465,  331.  337,  376 

Butler  v.  Porter,  13  Mich.  392  1M 

Butler  v.  Saginaw  Board,  26  Mich.  22.  .4,  223.  257.  258,  286.  291,  299,301 
Butler  v.  Toledo,  5  Ohio  St.  225 219 


TABLE    OF    CASES  652 

[REFERENCES  ARE  TO  SECTIONS] 

Byles  v.  Genung,  52  Mich.  504   153,  411 

Byles  v.  Golden  Twp.,  52  Mich.  612   293,  409 

Byram  v.  Detroit,  50  Mich.  56  376 

c 

Cahoon  v.  County,  52  N.  H.  518 93 

Caldwell  v.  Ward,  88  Mich.  376  434 

Caledonia  Twp.  v.  Rose,  94  Mich.  216 434 

Callam  v.   Saginaw,  50  Mich.  7 7,  435 

Callender  v.  Olcott,  1  Mich.  344  47 

Camp  v.  Algansee  Twp.,  50  Mich.  4  169,  293,  409 

Campau  v.  Detroit,  106  Mich.  414  313,  363 

Campau  v.  Drain  Commissioner,  105  Mich.  422  264 

Campau  v.  Grosse  Pointe  Board,  132  Mich.  365  319,  325 

Canal  Co.  v.  Superior,  11  L.  N.  835,  139  Mich.  24  354,  257,  287 

Canfield,  etc.,  Co.  v.  Manistee,  100  Mich.  466   157,  158,  160,  411 

Carleton  v.  People,  10  Mich.  250   43 

Carlow  v.  Smith,  114  Mich.  67   252,  281 

Carney  v.  Baldwin,  95  Mich.  442  393 

Carpenter  v.  Auditor  General,  13  L.  N.  160,  144  Mich.  251.. 439,  453 

Carpenter  v.  Jones,  117  Mich.  91 244,  155,  398,  404 

Carter  v.  Dow,  16  Wis.  298   132 

Case  v.  Dean,  16  Mich.  12 101,  106,  114,  141,  142,  181,  209,  214,  230, 

234,  238 

Case  v.  Detroit,  129  Mich.  298  91 

Case  v.  Skinner,  121  Mich.  206  391 

Case  v.  Telling,  112  Mich.  689 294 

Case  County  Board  v.  Porter  Twp.,  18  Mich.  101  169 

Cass  Farm  Co.  v.  Detroit,  124  Mich.  426 322,  329,  352,  360,  362, 

365,  373,  421 

Cass  Farm  Co.  v.  Detroit,  11  L.  N.  780,  139  Mich.  318 143,  215,  439 

Cathcart  v.  Merritt  Twp.,  38  Mich.  243  291 

Cedar  Springs  v.  Schlich,  81  Mich.  405  9 

Chaddock  v.  Day,  75  Mich.  527 18,  19 

Chaffee's  Appeal,  56  Mich.  244   316,  323,  435 

Chaffee  v.  Detroit,  53  Mich.  573   435 

Chamberlain  v.  Ahrens,  55  Mich.  Ill   86,  214,  215 

Chamberlain  v.  Forbes,  125  Mich.  86   189,  191 

Chamberlain  v.  St.  Ignace,  92  Mich.  232  107,  108 

Chambers  v.  Durfee,  100  Mich.   653    40 

Chandler  v.  Board  of  Education,  104  Mich.  492  360,  361 

Chandler  v.   Clark,   151  Mich.  160    184 

Chandler  v.  Heiser,  15  L.  N.  333 ,  153  Mich.  1 286 

Chapel  v.  Smith,  81  Mich.  100  226,  305,  308,  309 

Chapin  Mining  Co.  v.  Uddenberg,  126  Mich.  375   155 

Chapman  v.  Drain  Com'r,  49  Mich.  305 269,  273 

Chapman  v.  Remington,  80  Mich.  552    155 

Charlestown  v.  Commissioners,  109  Mass.  270  94 

Chase  v.  Middletown,  123  Mich.  648   247 

Chase  v.  Silverstone,  62  Me.  175  315 


TABLE   OF    CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Chasemore  v.  Richards,  7  H.  L.  Cas.  349  315 

Chatlield  v.  Wilson,  28  Vt.  49   . .  315 

Chauncey  v.   Waso,   135   Minn.  23    

Checver  v.   Mint  Land  Co.  Lt.,  134  Mich.  604    197,   198 

Chelsea  v.  Holmes,  137  Mich.   195   ...  4O5 

Cheboygan  Board  v.  Mentor  Twp.,  94  Mich.  386 137,  138,  287 

Cheboygan  Co.  v.  Erratt,  110  Mich.  156 

Chicago  v.  Bank,  11  111.  App.  165   157 

Chicago  v.   People,  56  111.  327   368 

Chicago,  etc.,  R.  Co.  v.  Auditor  General,  53  Mich.  79 32 

Chicago,  etc.,  R.  Co.  v.  Com'r,  119  Mich.  135  

Chicago,  etc.,  R.  Co.  v.  Chappell,  124  Mich.  72  261,  301,  30t 

Chicago,  etc.,  R.  Co.  v.  Ellson,  113  Mich.  30  164 

Chicago,  etc.,  R.  Co.  v.  Mansfield.  29  Mich.  418 171 

Chicago,  etc.,  R.  Co.  v.  Price,  138  U.  S.  185  364 

Chicago,  etc.,  R.  Co.  v.  San  ford,  23  Mich  418  260,  274 

Chickering  v.  Faile,  38  111.  342  186 

Quivers  v.   People,  11  Mich.  43   2« 

Qiippewa  Hardware  Co.  v.  Atwood,  127  Mich.  339  147,  163 

Chittenden  v.  Lansing,  120  Mich.  539   331,  363 

Christian,  Ex  Parte,  23  Ark.  641   152 

Christian   v.    Sodderberg,   118   Mich.  47    181,   439,  446 

Church  v.  Nester,  126  Mich.  547  377,  385,  395,  402 

Church  v.  Smith,  121  Mich.  97  197,  401 

Church  Street,  In  Re,  49  Barb.  455  272 

Churchill  v.  Detroit  Council,  15  L.  N.  379 ,  153  Mich.  93 21 

Citizens'  Savings  Bank  v.  Auditor  General,  123  Mich.  511.197,  401,  4O4 

Citizens',  etc.,  Co.  v.  Topeka,  20  Wall.  655 118 

Clapp  v.  Hartford,  35  Mich.  66   352 

Garence  Twp.  v.  Dickenson,  14  L.  N.  906 ,  151  Mich.  270 430 

Clark    v.   Oxford,   5    Mich.    182    50,   100,  413,   459 

Clark  v.  Crane,  5  Mich.  151   100 

Clark   v.   Drain  Com'r,  50   Mich.   618    226,  249,  267,  424,  430,  444 

Clark  v.  Fredenburg.  43  Mich.  263  152 

Clark  v.  Hall,  19  Mich.  357  110.  221 

Dark  v.  Mowyer,  5  Mich.  462  383 

Clark   v.   Wiles,  54   Mich.   328    414,  444.   4S7 

Clay  v.  Grand  Rapids,  60  Mich.  451   317,  321.  324,  344 

Clee  v.  Saunders,  74  Mich.  692   10 

Clee  v.  Trenton.  108  Mich.  293   137 

Cement  v.  Everest,  29  Mich.  19 43.  268.  437 

Clinton  Twp.  v.  Teachout,  14  L.  N.  246,  150  Mich.  124  ..284.  425,  443 

Clippinger  v.  Auditor  General.  135  Mich.  1   155,  184 

Clute  v.  Barron,  2  Mich.  192   181,  192 

Cockburn  v.  Auditor  General,  120  Mich.  643.158.  171.  187,  210,  212.  159 

Coe  v.  Gregory,  53   Mich.   19    43 

Coe  v.  Railway  Co.  10  Ohio  St.  372  764 

Cogburn  v.  Hunt.  57   Mich.  681    143 

Coit  v.  Grand  Rapids,  115  Mich.  493  57.  347 

Cole  v.  Auditor  General,  132  Mich.  262  397 

Cole  v.  Black  River  Falls,  57  Wis.  110  45 

Cole  v.  Dooly.  137  Mich.  419  246.  313 


TABLE   OF    CASES  654: 

[REFERENCES  ARE  TO  SECTIONS] 

Cole  v.  Shelp,  98  Mich.  56 383,  391,  419 

Coleman  v.     Chadwick,  80  Pa.  St.  81   315 

Collins  v.  Charters  Gas  Co.,  131  Pa.  St.  143,  and  139  Pa.  State  111.. 315 

Collins  v.  Rea,  127  Mich.  273   • 136 

Comins  Twp.  v.  Harrisville  Twp.,  45  Mich.  442,  258 42,  169,  414 

Commercial  National  Bank  v.  Portland,  24  Or.  188   368 

Commissioner  v.  Hamilton  Mfg.  Co.,  12  Allen  302  29 

Commissioner  v.   McCombs,  56   Pa.   St.  436    45 

Commissioner  v.  Wabash  R.  Co.,  123  Mich.  669  32 

Commissioners  v.  Rush,  84  Mich.  154  332 

Com'r  of  Land  Office  v.  Auditor  General,  131  Mich.  147 55,  214,  397 

Common  Council  v.  Board  of  Public  Works,  87  Mich.  113 322,  331 

Commonwealth  v.  Holmes,  25  Gratt.  771 152 

Comstock  v.  Grand  Rapids,  54  Mich.  641  75,  87,  94,  96 

Conley  v.  Auditor  General,  123  Mich.  83   197,  456 

Conley  v.   McMillan,   120  Mich.  643    

Conley  v.  St.  Clair  Board,  88  Mich.  245   245,  286,  296 

Connecticut,  etc.,  Ins.  Co.  vs.  Bulte,  45  Mich.  113..  184,  186,  189,  190, 

206,  209 

Connecticut,  etc.,  Ins.  Co.  vs.  Wood,  115  Mich.  444 196,  198,  200, 

207,  212,  218,  390,  420 

Connors  v.  Detroit,  41  Mich.  128  142,  437 

Conrad   v.   Smith,  32   Mich.  429    244,   305 

Constantine  v.  Albion,  14  L.  N.  231 ,  148  Mich.  403  376 

Converse  v.  U.  S.,  21  How.  463   152 

C'onway  v.   Taylor,    1    Black   603    26 

Conway  v.  Waverly  Twp.,  15  Mich.  257  437,  448 

Cook  v.  Auditor  General,  124  Mich.  430   

Cook  vs.  Covert,  71  Mich.  249   226,  278,  280,  284 

Cook  v.  Hall,     123  Mich.  373 399,  445 

Cook  v.  State,  4  Vroom.  474   59 

Cook  Land  Co.,  etc.,  v.  McDonald,  15  L.  N.  953 200,  213,  402,  421 

Cboley  v.  Waterman,  16  Mich.  366  182 

Corey  v.  Probate  Judge,  56  Mich.  524   243 

Corliss  v.  Highland  Park,  132  Mich.  152.330,  334,  344,  349,  350,  359,  368 

Corliss  v.  Highland  Park,  146  Mich.  597  330 

Corning  v.  Masonville  Twp.,  74  Mich.  177 77 

Corrigan  v.  Hinckley,  125  Mich.  125   200,  213,  402 

Coulter  v.  Detroit,  59  Mich.  391   130 

Council  y.  Board  of  Assessors,  91  Mich.  78  14,  36,  64,  66 

Courtwright  v.  Township  Clerk,  54  Mich.  182    114 

Cox  v.  Jackson  Council,  15  L.  N.  330 ;  152  Mich.  630 23 

Cox  v.  Welcher,  68  Mich.  263  157,  160 

Coyle  v.  O'Connor,  121  Mich.  596   380 

Crandall   v.  McElheny,   146  Mich.  191    424 

Crane  v.  Reeder,  25  Mich.  303   194,  212 

Crawfordsville  v.  Braden,  121  Ind.  206  8 

Crittenden  v.  Mt.  Clemens,  86  Mich.  220  67,  73,  160,  410 

Crittenden  v.  Robertson,  13  Mich.  58  135,  219,  222 

Crooks  v.  Whitef ord,  47  Mich.  283  100 

Croskery  v.  Busch,  116  Mich.  288   143,  200,  212,  386,  420 

Cross   v.    Kitts,    69    Cal.   27    315 


655  TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Crystal  Lake  Twp.  v.  Hill,  109  Mich.  246 153 

Cubit  y.  O'Dett,  51  Mich.  534   .305 

Cummings  v.  Grand  Rapids,  46  Mich.  150 317,  324,  333,  337.  374 

Cummings  Twp.  v.  Ogetnaw  Co.,  93  Mich.  314  169,  170,  414 

Cummings  Twp.  v.  Ogemaw  Co.,  100  Mich.  567  I7u 

Cummings  Twp.  v.  State  Treasurer,  7  Mich.  365  

Curran  v.  Banks,  123  Mich.  594   . .   189 

Curry  v.  Backus,  16  L.  N.  103  403 

Curry  v.  Larke,  15  L.  N.  491;  153  Mich.  348 4O2 

Curry   v.   Spencer,   61    N.   H.   624    ; 

Curry  v.  Tawas  Twp.,  81  Mich.  355  25,  91,  157 

Curtinius  v.  Railway  Co.,  37  Mich.  583  435 

Curtis  v.  East  Saginaw,  35  Mich.  508  438 

Curtis  v.  Richland  Twp.,  56  Mich.  478  76 

Curtiss  v.  Witt,  110  Mich.  131 153,  412 

D 

Dahlem  v.  Abbott,  13  L.  N.  894,  146  Mich.  605  1»6 

Daily    v.    Swop,   47   Miss.    367    354 

Daniels  v.  Long,  111  Mich.  562  113 

Daniels  v.  Smith,  38  Mich.  660   265 

Daniels  v.  Watertown  Twp.,  55  Mich.  376  100,  40« 

Daniels  v.  Watertown  Twp.,  61  Mich.  514  100,  2^3 

Darmstaetter  v.  MoLooney,  45  Mich.  621 100,  101 

Dart  v.  Woodhouse,  40  Mich.  399   70 

Davidson  v.  Otis,  24  Mich.  23   244,  277,  428 

Davies  v.  Saginaw,  87  Mich.  439 317,  321,  324,  344,  353,  354,  371,  438 

Davis  v.  Campbell,  14  L,  N.  828,  150  Mich.  675  368 

Davis  v.  Frankenlust  Twp.,  118  Mich.  494  314 

Davis  v.  Macey,  124  Mass.  193  78 

Davis  v.  Ontonagon  Board,  64  Mich.  404  10,  126 

Dawson  v.  Aurelius  Twp.,  49  Mich.  479  169,  291,  293,  409 

Dawson  v.   Peter,  119  Mich.  274   203,  205,  207,  209,  419 

Day  v:  Alverson,  9  Wend.  223  205 

Day  v.  Davey,  132  Mich.   173 210 

Dayton  Twp.   v.   Rounds,  27   Mich.  82 169 

Dean  v.  Clinton  Co.  Treasurer,  13  L.  N.  899,  146  Mich.  645 291 

Dean  v.  Millard,  151  Mich.  582  305 

Decatur  Twp.  v.  Copley,   133   Mich.  546 290,  49,  238,  405 

De  La  Cuesta  v.  Ins.  Co.  136  Pa.  St.  62 157 

Dean  v.  Clinton  County  Treasurer,  146  Mich.  645  291 

Deerfield  Twp.  v.  Harper.  115  Mich.  678  48,  129,  241,  405 

Defer  v.   Detroit,   67   Mich.  346    308.  368 

Defreese  v.  Lake,  109  Mich.  415   154,  184,  185,  197 

DeGraff  v.  Ramsey  Co.,  45  Minn.  319 157 

Delapp  v.   Beckwith,  114  Mich.  394 3«5 

Delray  Land  Co.  v.  Springwells  Twp..  14  L.  N.  483,  149  Mich.  397 

97,  232.  45ft 

Dennison  v.  Allen,  106  Mich.  295  S97,  298 

Detroit  v.  Beecher,  75  Mich.  454  321,  323 


TABLE   OF    CASES  656 

[REFERENCES  ARE  TO  SECTIONS] 

Detroit,  v.   Blades,   133  Mich.  249 332 

Detroit  v.  Chapin,  112  Mich.  588   334,  353 

Detroit  v.  Circuit  Judge,  127  Mich.  604  35,  164,  436 

Detroit  v.  Daly,  68  Mich.  503    344,  349,  350 

Detroit  v.  Detroit  City  Ry.,  76  Mich.  421  35 

Detroit  v.  Detroit  Mfg'rs  Ry.,  14  L.  N.  548,  149  Mich.  530 32 

Detroit  v.  Jacobs,  45  Mich.  395    94 

Detroit  v.  Jepp,  52  Mich.  458  405 

Detroit  v.  Laughna,  34  Mich.  402 7 

Detroit   v.    Lewis,    109    Mich.    155    76 

Detroit  v.  Lothrop  Co.,  136  Mich.  265  72 

Detroit  v.  Macier,  117  Mich.  76   73 

Detroit  v.  Mackinaw  Transportation  Co.,  140  Mich.  174 62,  72,  94 

Detroit  v.  Martin,  34  Mich.  170  157,  159,  438,  439 

Detroit  v.  Mich.  Paving  Co.,  36  Mich.  355 360,  365,  368 

Detroit  v.  Mich.  Paving  Co.,  58  Mich.  601   160,  410 

Detroit  v.  Patten,  12  L.  N.  980,  143  Mich.  243 73,  143,  154 

Detroit  v.  Robinson,  42  Mich.  198   263,  36$ 

Detroit  v.   Weber,  26  Mich.  284    152 

Detroit  v.  Weber,  29  Mich.  24  152 

Detroit  v.  Western  Union  Tel.  Co.,  130  Mich.  479  37 

Detroit  Citizens'  Ry.  v.  Detroit,  125  Mich.  673   35 

Detroit,  etc.,  Plank  Road  Co.  v.  Highland  Park,  142  Mich.  326.291,  418 

Detroit  Fire  &  Ins.  Co.  v.  Hartz,  132  Mich.  518  36 

Detroit  Fire  &  Ins.  Co.  v.  Wood,  118  Mich.  31  197,  394,  395 

Detroit  &  Gd.  Haven  R.  Co.  v.  Com'r,  119  Mich.  132  32 

Detroit,  etc.,  School  v.  Detroit,  76  Mich.  521 59 

Detroit  Plank  Road  Co.  v.  Detroit,  81  Mich.  562   60 

Detroit  Savings  Bank  v.  Detroit,  114  Mich.  81   66,  96 

Detroit,  etc.,  R.  Co.  v.  Com'r,  118  Mich.  340 33 

Detroit,  etc.,  R.  Co.  vs.  Detroit,  81  Mich.  561  57 

Detroit,  etc.,  R.  Co.,  v.  Detroit,  12  L.  N.  315,  141  Mich.  5 72 

Detroit,  etc.,  R.  Co.  v.  Salem,  20  Mich.  452 3,  4,  9 

Detroit,  etc.,  R.  Co.  v.  State  Tax  Commission,  136  Mich.  96  ...61,  112 

Detroit  Street  Ry.  y.  Guthard,  51  Mich.  180  .32,  35 

Detroit  Transportation  Co.  v.  Assessors,  91  Mich.  382   *72,  75 

Detroit  Union  Depot  Co.  v.  Detroit,  88  Mich.  347 60 

Detroit  United  Ry.  v.  State  Tax  Com'rs,  136  Mich.  96  32,  112 

Detroit  Water  Com'rs  v.  Auditor  General,  115  Mich.  546    58 

Detroit  Young  Men's  Society  v.  Mayor,  3,  Mich.  172 59 

Dewar  v.  People,  40  Mich.  401   15,  20,  23 

Diamond  Match  Co.  v.  Ontonagon,  140  Mich.  183 116,  123,  241 

Dickinson  v.  Detroit,  111  Mich.  480 325 

Dickinson  v.  Van  Wormer,  39  Mich.  141   260,  265,  424,  42S 

Dickinson  v.  Reynolds,  48  Mich.  158 78,  100,  149,  161,  174,  239,  241 

Dietz  v.  Frazer,  50  Mich.  227   300,  422,  424 

Divine  v.  Lakeview  Village,  121  Mich.  433   24 

Dixon  v.  Detroit,  86  Mich.  516   358,  362,  365,  414 

Dixon  v.  Ludington,  130  Mich.  269   54,  190,  216,  446 

Dodge  v.  Judge,  118  Mich.  189  9,  416,  433 

Dool  v.  Cassopolis,  42  Mich.  547   20,  95 

Doran  v.  Phillips,  47  Mich.  228  25,  155 


TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Dorenberg  v.  Oakerman,  130  Mich.  23,  203  189 

Dorgan  v.  Boston,  12  Allen  223   

Dorr  v.   Boston,  6.  Gray  131    

Douglass  v.  Dangerfield,  10  Ohio  St.  152  .   1  - j 

Downer  v.  Richardson,  14  L.  N.  371 ,  148  Mich.  596  

Dox  v.  Postmaster  General,  1  Peters  317  i.vj 

Drcnnan   v.   Beierlein,  4J>  Mich.  272    96,    150,   174 

Drennan  v.  Hertzog,  56  Mich,  467  202 

Driggers  v.  Cassady,  71  Ala.  533  453 

Dubois  v.  Campau,  24  Mich.  360  52,  186,  235 

Duffy  v.  Saginaw,  106  Mich.  335  331,  337.  340,  356,  360,  374 

Duflo   v.    Lillibridge,    114    Mich.   350    424.    447 

Dumphrey  v.  Auditor  General,  123  Mich.  354 83,  379 

Dumphrey   v.    Hilton,   121    Mich.  315    379,  396 

Dunham  v.   Hough,  80  Mich.  648  24 

I  >unlap   v.    Edgcrton,  30  Vt.  224    

Dunnings  v.  Calkins,  51  Mich.  577   226,  2*9 

Dun n ings  v.  Drain  Com'r,  44  Mich.  518  , 220 

Dupont  v.  Highway  Com'r,  28  Mich.  362   L" 

Dwight  v.  Boston.  12  Allen,  316  '. 65 

E 

East  Hartford  v.  Hartford  Bridge  Co.,  10  How.  511  2 

East  Saginaw  v.  County  Treasurer,  44  Mich.  273 25 

East  Saginaw  Mfg.  Co.  v.  East  Saginaw,  19  Mich.  259 9,  34.  5V 

Easterling  v.  State,  35  Mich.  210  39i 

Eaton  v.  Cheesebrough,  82  Mich.  214 4 143 

Ebcrts  v.  Fisher,  44  Mich.  551   445 

Eddy  v.  Granger,  28  L.  R.  A.  (R.  I.)  517 306 

Edd  v.  Lee  Twp.,  73  Mich.  123   434 

Edwards  v.  Taliafero,  34  Mich.   14 142 

Edwards  v.  Upham,  93  Wis.  455  IK 

Eitel  v.  Foote,  39  Cal.  439  383 

Eldridge  v.  Richmond.  120  Mich.  581  193,  384,  401 

Elk  Rapids  Iron  Co.  v.  Helena  Twp.,  117  Mich.  211  77 

Elliott  v.  Carter,  12  L.  N.  169,  140  Mich.  303 313 

Elliott  v.   Miller,  8  Mich.   132   155 

Ellsworth  v.  Freeman.  43  Mich.  488  200.  420 

Ely   v.   Grand   Rapids.  84   Mich.  336    333 

Emerson  v.  Walker  Twp..  63  Mich.  483  293,  447 

Emi-ry  v.  Judge.   138   Mich.  542    313 

Enke  v.  Lange.  90  Mich.  592  68 

F.nki-  v.  Lange.  104  Mich.  26   68.  146 

Equitable  Life  Ins.  Co.  v.  Board  of  Education,  74  la.  176 36 

Escanaba  Timber  Land  Co.  v.  Rusch,  14  L.  N.  24.  147  Mich.  619 

198.    200.    403 

Fs!..w  v.  Albion.  15  L.  N.  608.  153  Mich.  7>0  

Essex  Public  Road  Board  v.  Shinkle.  140  U.  S.  334 

Estabrook  v.  Pritchard.  19  Mich.  470 15'. 

Kvart   v.  Postal.  86  Mich.  325   151 

Eyri-  v.  Jacob,  14  Gratt.  438  40 

(42) 


TABLE   OF    CASES  658 


[REFERENCES  ARE  TO  SECTIONS] 

F.  &.  F.  Lumber  Co.  v.  Thompson  Twp.,  12  L.  N.  49,  139  Mich. 

698     114 

Facey  v.  Fuller,  13  Mich.  527   46 

Fairbanks  v.  Kittridge,  24  Vt.  9   94 

Fairbanks  v.  Williams,  24  Kan.  19   143 

Fargo  v.  Auditor  General,  57  Mich.  598   32 

Farmers'  Bank  v.  Bronson,  14  Mich.  361  209 

Farnsworth  v.  Rand,  65  Me.  19  78 

Farr  v.  Anderson,    135   Mich.  485    24 

Farr  v.  Grand  Rapids,  112  Mich.  99  120,  4?,.r> 

Fay  v.   Wood,   65  Mich.  391    98,  116,  136 

Featherly  v.  Hoffman,  117  Mich.  42    385 

Fells  v.  Barbour,  58  Mich.  49  100,  ,189,  190,  202 

Ferton  v.  Feller,  33  Mich.  199   50,  140,  £35,  223 

Fifield  v.  Close,  15  Mich.  505  1,  41 

Finn  v.  Haynes,  37  Mich.  63  „ 147 

First  National  Bank  v.  St.  Joseph  Twp.,  46  Mich.  526 48,  69,  93, 

94,    96,    228 

First   National   Bank  v.   Watkins,  21    Mich.   483    69,   158,   159,  40S 

Fitschen  v.  Olsen,  15  L.  N.  1010   402 

Fitzhugh   v.   Bay   City,    109    Mich.   581    376 

Fitzpatrick  v.   Weaver,   147   Mich.  382    20 

Fleet  v.  Borland,  11  How.  Pr.  389 '. 154 

Fleetwood  v.  The  City,  2  Sanf.  475    157 

Fletcher  v.  Alcona  Twp.,  72  Mich.  18 51,  61,  77 

Fletcher  v.  Post.  104  Mich.  424   77,  222,  411 

Flinn  v.   Parsons,  60  Ind.  573    143 

Flint  v.  Sawyer,  30  Me.  226   174 

Flint  Land  Co.  v.  Auditor  General,  133  Mich.  542   212,  397 

Flint  Land  Co.  v.  Fochtman,  12  L.  N.  171,  140  Mich.  341 439 

Flint  Land  Co.  v.  Godkin,  136  Mich.  668   386,  391,  402,  453,  439 

Flint   Land    Co.   v.    Gd.   Rapids    Terminal   Ry.    14   L.    N.    63,   147 

Mich.   627    332 

Flint  &  P.  M.  R.  Co.  v.  Auditor  General,  41  Mich.  635  125 

Flint  &  P.  M.  R.  Co.  v.  Auditor  General,  114  Mich.  682 32 

Flint  &  P.  M.  R.  Co.  v.  Saginaw,  Treasurer,  32  Mich.  260 179,  199 

Flynn  v.  Detroit.  93  Mich.  590   216 

Flynn  v.  Service!  12  L.  N.  113 ,  140  Mich.  121  313 

Flynn  Twp.  v.  Woolman,  133  Mich.  508 248,  255,  256,  264,  265, 

277,  278 

Foegan  v.  Carpenter,  117  Mich.  89   379 

Folkerts  v.  Powers,  42  Mich.  283   92,  130,  436,  445,  449 

Forest  v.  Henry,  33  Minn.  434 155 

Forest  v.  Mayor,  13  Abbott  351  157 

Forster  v.  Brown,  119  Mich.  86   411 

Fowler  v.  Bebee,  9  Mass.  234   44 

Fowler  v.   Campbell,  100  Mich.  398    79,  380,  383 

Fox  Est,  In  Re,  15  L.  N.  675 •. 40 

Francis  v.  Grote,  14  Mo.  App.  324   383 

Frankfort  Village  v.   Schmid,   151   Mich.  85    369 


TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Franzees  Case,   63   Mich.   396    15,   18 

Frazier  v.  Brown,  12  Ohio  St.  294   315 

Freed  v.  Stuart,  13  L.  N.  950,  147  Mich.  31 246.  295,  309 

Freeman  v.   Weeks,  45  Mich.  255   226,  854,  307,  444 

Freeman   v.   Weeks,   45   Mich.  336    226,  254 

French  v.  South  Arm  Twp.,  122  Mich.  593  '.  126 

I-  ri-ntz  v.  Klotsch,  28  Wis.  312 1«« 

Frenchtown  Twp.  v.  Monroe  Board,  89  Mich.  204   1)6 

Friedman  v.  Horning,  128  Mich.  606  173 

Frost  v.  Leatherman,  55  Mich.  33 145,  249,  251,  290,  440,  447 

I  ui-rertein  v.  Richter,  15  L.  N.  751 309 

Fuller  v.  Grand  Rapids,  40  Mich.  395   166,  433,  439 

Fuller  v.  Grand  Rapids,  105  Mich.  529  

Fuller  v.  Kane,  110  Mich.  549 154 

Furman   St.,  In  Re.,  17  Wend.  667 325 

G 

Gable  v.  Deal,  14  L.  X.  734 ,  150  Mich.    430  294 

Cachet  v.  McCall,  50  Ala.  307  158 

Gage  v.  Saginaw,  128  Mich.  682   105,  160 

Gale  v.  Sup'r,  16  Mich.  254   135 

Camber  v.  Holben,  5  Mich.  335 441 

Gamble  v.  Auditor  General,  78  Mich.  302 114,  117,  136,  142,  436,  437 

Gamble  v.  East  Saginaw,  43  Mich.  367   102.  234,  438,  439 

Gamble  v.  Horr,  40  Mich.  561   205 

Garner  v.  Wallace,  118  Mich.  387  196,  198,  203,  ytn, 

Gantz  v.  Toles,  40  Mich.  725  341 

Garison  v.  Stecle,  46  Mich.  98   24 

Gartner  v.  Detroit,  131  Mich.  21   363 

Gates  v.  Grand  Rapids,  134  Mich.  196  317,  324.  376 

Gates  v.  Johnson,  121  Mich.  663 222,  389.  391,  453 

Gaussen  v.  U.  S.,  98  U.  S.  584  15S 

Gay  v.  Baltimore,  100  U.  S.  438  17 

Gebhardt  v.  East  Saginaw,  40  Mich.  336  155,  158 

Georgia  v.  Railway  Co..  3  Woods  334 164 

Gibbons  v.  Ogden.  9  Wheat.  205   JO.  26 

Gibbs  v.  School  Dist..  88  Mich.  334  369 

Gibson   v.   Com'r,   121    Mich.   49    » 6 

Giddings  v.  Giddings.  70  la.  486  391 

Gilchrist  v.  Dean,  55  Mich.  244  100 

Gillett  v.  McLaughlin,  69  Mich.  547  226.  250.  280.  282. 

Gillison   v.   Cressman.   100   Mich.  591    249,  284,  178.  285 

Gillman  v.  Riopelle.  18  Mich.  145  S3,  113.  214 

Gladwin  Twp.  v.  Bourrett  Twp.,  131  Mich.  353   169 

Glass  Co.  v.  Boston,  4  Mete.  181  157,  158 

Godkin  v.  Corliss,  146  Mich.  507  163 

Godkin  v.  Ruttcrbush,  13  L.  N.  978,  147  Mich.  116  447 

Godkin  v.  Doyle  Twp.,  12  L.  N.  968.  143  Mich.  236 158.  166 

Goegal  v.  Iffla.  48  Hunn.  21   390 

Goldsmith  v.  Highway  Com'r.  14  Mich.  528  4t§ 


TABLE   OF    CASES  660 

[REFERENCES  ARE  TO  SECTIONS] 

Goldsmith  v.  Nankin,  15  Mich.  347  120 

Goodell  v.  Auditor  General,  12  L.  N.  947,  143  Mich.  240 389 

Goodman  v.  Nester,  64  Mich.  662   206,  210,  439 

Goodrich  v.  Detroit,  123  Mich.  559.. 323,  334,  344,  353,  368,  371,  373,438 

Goodwillie  v.  Detroit,  103   Mich.  283   321.,  337,  376 

Goss  v.  Vermontville  Village,  44  Mich.  319  24 

Goulickson  v.   Gjorud,  89  Mich.  8   24 

Crafty  v.   Rushville,   107   Ind.   502    25 

Graham  v.  King,  50  Mo.  22  384 

Graham  v.  St.  Joseph  Twp.,  67  Mich.  652 55,  62,  65,  74 

Graham  v.  Water  Co.,  119  Mich.  652  51,  61 

Grand  Lodge  v.  New  Orleans,  166  U.  S.  143   34 

Grand  Rapids  v.  Blakely,  40  Mich.  367  158,  356,  409 

Grand  Rapids  v.  Braudy,  105  Mich.  670   18,  19 

Grand  Rapids  v.  De  Vries,  123  Mich.  570   15 

Grand  Rapids  v.  L.  S.  &  M.  S.  Ry.,  130  Mich.  238 154 

Grand  Rapids  v.  Leonard,  40  Mich.  370  158,  410 

Grand  Rapids  v.  Newman,  111  Mich.  48   19 

Grand  Rapids  v.  Norman,  100  Mich.  544   18,  19 

Grand  Rapids  v.  Wellman,  85  Mich.  234,  285 106,  142,  149,  234,  405 

Grand  Rapids  Bark,  etc.,  Co.  v.  Inland  Twp.,  136  Mich.  121.. 61,  75,  154 

Grand  Rapids,  etc.,  R.  Co.  v.  Auditor  General,  144  Mich.  77 415 

Grand  Rapids,  etc.,  R.  Co.  v.  Grand  Rapids,  137  Mich.  587  37 

Grand  Rapids,  etc.,  R.  Co.  v.  Weiden,  69  Mich.  572 260 

Grand  Rapids  Furniture  Co.  v.  Grand  Rapids,  92  Mich.  564.. 342,  353 

Grandchamp  v.  McC'ormick,  14  L.  N.  666 ,  150  Mich.  232  425 

Grant  v.  Board  of  Water  Com'rs,  122  Mich.  694  363 

Grant  v.  Detroit,  91  Mich.  274   331,  360 

Gratoph  v.  Probate  Judge  (McGrath  Mandamus  Cases  No.  610)..  264 
Gratwick  Lumber  Co.  v.  Oscoda  Co.,  97  Mich.  221.. 48,  78,  88,  90, 

94,   150,  235,  237,  409 

Gray  v.  Detroit,  113  Mich.  657   155,  156,  207 

Gray  v.  Eldred,  13  L.  N.  88 ,  144  Mich.  123  441 

Gray  v.  Finn,  96  Mich.  62   163,  410 

Green  v.  Grant,  134  Mich.  462   154 

Greenjeaf  v.  Francis,  18  Pick.  117   315 

Greenley  v.  Hovey,  115  Mich.  504  446,  448 

Gregory  v.  Ann  Arbor,  127  Mich.  454   339,  342,  351,  376 

Gregory  v.  Bush,  64  Mich.  37   314 

Greier  v.   School  Dist,  57   Pa.  St.  433   4,  150 

Griffin  v.  Jackson,  13  L.  N.  410,  145  Mich.  23   197,  206,  403 

Griffin  v.  Kennedy,  14  L.  N.  312 ,  148  Mich.  583  318 

Griswold  v.  Bay  City,  35  Mich.  452    367 

Griswold  v.  Union  School  Dist.,  24  Mich.  262   95,  99 

Grosbeck  v.   Seeley,  13  Mich.  329   216,  231 

Gurd  v.  Auditor  General,  122  Mich.  151   200,  212,  384,  397 

Gwynne  v.  Burrell,  7  Clark  &  Finn,  572 152,  166 

H 

Hackett  v.  Brown,  128  Mich.  141   256,  262,  278,  424,  426,  429 

Hackley  v.  Mack,  60  Mich.  591  164,  436 


661  TABLE   OF    CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Hagenbuck  v.  Howard,  34  Mich.  1  434 

Haines  v.  Sup'rs,  87  Mich.  237  ...  189,  414 

Haines  v.  Sup'rs,  99  Mich.  32   199,  414 

Haldeman  v.  Bruckert,  45  Pa.  St.  514  .'  313 

Haley  v.  Alton,  152  111.  113  317,  344,  383 

Hall   v.   Bader,  75  Mich.  316   

Hall  v.  Collins,   117   Mich.  617 181,   \S3,  193 

Hall  v.  Kellog,  16  Mich.  135  . .  j 134,  142,  230,  340,  3O4 

Hall  v.  Mann,  118  Mich.  201  227.  385,  391,  393> 

Hall  v.  Mann,  122  Mich.  13   196 

Hall  v.  Miller,  14  L.  N.  641,  150  Mich.  300 399 

Hall  v.   Palmer,  54  Mich.  270   IM 

Hall  v.  Perry,  72  Mich.  202  219.  228 

Hall  v.  Slabaugh,  69  Mich.  484 226,  250,  305 

Hamilton  v.  Ames,  74  Mich.  298  91 

Hamilton  v.  La  Anse  Twp.,  107  Mich.  419 124,  2S3 

Hamlin  v.  Kassefer,  15  Or.  436   44 

Hammond  v.  Place,  116  Mich.  629  118 

Hammond  v.  School  Board,  109  Mich.  676  27 

Hammontree  v.  Lott,  40  Mich.  190  142,  445 

Hand  v.  Auditor  General,  124  Mich.  424 155,  15«,  177,  397 

Haney  v.  Miller,   15   L.   N.  592    212 

Haney  v.  Miller,  15  L.  N.  770  285 

Hanscom   v.   Hinman,   30   Mich.   419    78,  437 

Hanson  v.  McCue,  42  Cal.  303  315 

tfarbaugh  v.  Hartin,  30  Mich.  234 251,  253,  265,  295,  300,  425 

Harding  v.  Auditor  General,  136  Mich.  358  212 

Harding  v.  Auditor  General,  12  L.  N.  270,  140  Mich.  646 207.  212 

Harding  v.  Bader.  75  Mich.  315   117,  121,  123 

Hardwick  v.  Bassett,  29  Mich.  19   44 

Hardy  v.  Inhabitants,  etc.,  5  Allen  281  75 

Harper  v.  Grand  Rapids,  105  Mich.  551  365 

Harrington  v.  Dickinson,  15  L.  N.  996 387,  453 

Harrington  v.  Fish,  10  Mich.  415   82 

Harrington  v.  Hillard.  27  Mich.  271    143 

Harrington  v.  Probate  Judge,  15  L.  N.  556 ,  153  Mich.  660 274 

Harrison  v.  Spencer,  90  Mich.  186  215 

Harrison  v.  Spencer.  110  Mich.  215  215 

Hart  v.  Henderson,  17  Mich.  218 

Hart  Twp.  v.  Oceana  Co.  44  Mich.  417  130.  152.  170.  41S 

Hartford  v.  West  Middle  District.  45  Conn.  462 58.  346 

Harts  v.  Mackinac  Isl.,  131  Mich.  680  83.  232 

Harvey  v.  Bank,  119  Pa.  St.  212  158 

Harwood  v.  Drain  Com'r.  51  Mich.  639  226 

Hatch  v.  Reid,  112  Mich.  430   25,  155 

Hanck.  In  Re,  70  Mich.  396 Si 

Hauser  v.  Burbank.  117  Mich.  463  248.  262,  278.  S85.  302 

Haven  v.  Owen.  121  Mich.  51  180,  39O 

Hawkeye  Ins.  Co.  v.  Board  of  Equalization.  75  I*.  770  38 

Hawkins  v.  Litchfield  Village.  120  Mich.  390  24 

Hayden  v.  Qosser,  15  L.  N.  395 ;  153  Mich.  182 402 

Hayden  v.  dosser,  15  L.  N.  618  402 


TABLE   OF    CASES  662 

[REFERENCES  ARE  TO  SECTIONS] 

Hayden  v.  Foster,  13  Pick.  492   85 

Hays   v.    Steamship   Co.   17   How.   596    62 

Hayward  v.  Auditor  General,  14  L.  N.  1,  147  Mich.  591 397 

Hayward  v.  Kinney,  84  Mich.  591    445 

Hayward  v.  O'Connor,  12  L.  N.  667,  142  Mich.  230 156,  393 

Hayward  v.  O'Connor,  13  L.  N.  384,  145  Mich.  52   84,  397,  398 

Hecock  v.  Van  Dusan,  SO  Mich.  359  100,  139 

Heinsmiller  v.   Hathaway,   60   Mich.  391    419 

Hembling  v.   Big  Rapids,   89    Mich.   1    375 

Hendrie  v.  Kalthoff,  48  Mich.  306  60,  133 

Henry  v.  Gregory,  29  Mich.  68   163,  239,  437,  442 

Herrick  v.  Big  Rapids,  53  Mich.  554,  253   75,  142,  409 

Hess,  v.  Griggs,  43  Mich.  397  200 

Hester  v.  Chambers,  84  Mich.  562   323,  372 

Hewett  v.  White,  78  Mich.  117   136 

Hewitt  v.  Week,  59  Wis.  444    197 

Hickey  v.  Rutledge,  136  Mich.  128  51,  196,  197,  207,  413 

Hickman  v.  Kempner,  135  Ark.  505    174 

Hicks  v.  Perry  Village,  14  L.  N.  812,  151  Mich.  88 24 

Highway  Com'r  v.  Ely,  59  Mich.  173 305,  310,  311 

Highway  Com'r  v.  Sperling,  120  Mich.  493   311 

Hill  v.  Graham,  72  Mich.  659   77,  78,  222,  411 

ffill  v.  Warrell,  87  Mich.  135  79,  80,  341,  348 

Hill  v.  Wright,  49  Mich.  229  411 

Hilliker  v.  Coleman,  73  Mich.  170   312 

Hilton  v.  Dumphey,  113  Mich.  241 1,  227,  290,  391,  393,  394,  396,  419 

Hilyer  v.  Jonesfield  Twp.,  114  Mich.  644  293 

Hinckley  v.  Bishop,  14  L.  N.  820,  152  Mich.  256. .  .250,  280,  282,  284, 

294,  430 

Hinds  v.  Belvedere  Twp.,  107  Mich.  664  92,  94 

Hinds  v.  Probate  Judge,  Sup.  Ct.  File  No 248 

Hines  v.  Darling,  99  Mich.  47  311 

Hines  Lumber  Co.  v.  Wells  Twp.,  12  L.  N.  777,  142  Mich.  366 

Hinman  v.  School  Dist.,  4  Mich.  168  127 

Hobart  v.  Detroit,  17  Mich.  246   360 

Hodgdon  v.  Burleigh,  4  Fed.   R.   117    206 

Hoffman  v.  Auditor  General,  136  Mich.  689 155,  156,  198,  397,  415 

Hoffman  v.  Flint  Land  Co.,  13  L.  N.  474,  144  Mich.  564   ...389, 

398,  453 

Hoffman  v.  Harrington,  28  Mich.  99  206 

Hoffman  v.   Loud  &  Sons,  138   Mich.  5 205,  209,  210 

Hoffman  v.  Loud  &  Sons,  111  Mich.  156  209 

Hoffman  v.  Loud  &  Sons,  12  L.  N.  356,  138  Mich.  5  209 

Hoffman  v.  Lynburn,  104  Mich.  494  106,  107,  110,  123,  241 

Hoffman  v.  Pack,  Woods  &  Co.,  123  Mich.  74 183,  196,  219,  222, 

230,  232,  385,  391,  394 

Hoffman  v.   Silverthorn,   137  Mich.   60    197,  446,  456 

Hoffman  v.  Shell,  15  L.  N.  189 ,  151  Mich.  669  425,  430 

Hogelskamp  v.  Weeks,  37  Mich.  422    100,  124,  134,  240 

Holbrook  v.  Detroit,  8  Mich.  14   199 

Holden  v.    Sup'rs,   77   Mich.  202    224 

Holmes  v.  Detroit  Council,  120  Mich.  226  336,  357 


663  TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Holmes  v.  Loud,  14  L.  N.  474 ,  149  Mich.  410 198,  40* 

Homer  Twp.  v.  Smith,  12  L.  N.  559 ,  14  Mich.  586 406 

Hood  v.  Judkins,  61  Mich.  575  71,  171,  138,  411.  459 

Hooker  v.  Bond,  118  Mich.  255 161,  222,  387,  388,  391,  393,  4O1.  «*• 

Hopkins  v.  Briggs,  41   Mich.   175    ^'2C,  3O7,  414 

Horn  v.  Livingston  Co.  Board,  135  Mich.  553  257,  281,  286. 

Hoilton  v.  Helenholtz.  14  L.  N.  422,  149  Mich.  iiJ7  197 

Horton  v.  Ingersol,  13  Mich.  409 189 

Horton  v.  Sailing,  15  L.  N.  1114 l'.»4,  197,  3!»9 

Horton  v.  Sullivan,  97  Mich.  282  3U 

Hough  v.  Auditor  General,  116  Mich.  663   155,   156.  397 

Houghton  Co.  v.  Auditor  General,  41  Mich.  28 155,  171,  177,  180, 

407 

Houghton  County  v.  Auditor  General,  36  Mich.  271  177 

Houghton  County  y.  Rees,  34  Mich.  481 17J.   177 

Houseman  v.  Circuit  Judge,  58  Mich.  367  301 

Hovey  v.  McCracken,  81  Mich.  314   77 

Howell  Village  v.  Cassopolis,  35  Mich.  471  09 

Howell  Village  v.  Gordon,  127  Mich.  553  63,  76,  73 

Hoyt   v.   East   Saginaw,   19   Mich.  39    321,  353,   371 

Hoyt   v.   Southard,   38   Mich.   432    .' 206,   210.   419 

Hubbard  v.  Auditor  General.  118  Mich.  255   155.  193 

Hubbard  v.  Auditor  General,  120  Mich.  505  197,  397,  415 

Hubbard  v.  Sheppard,  117  Mich.  25   188.  225,  419 

Hubbard  v.  Winsor,  15  Mich.  46  78,  103,  136,  149,  15« 

Hubble  v.   Robertson,  65  Mich.  538   245,  287,  417 

Huddlemeyer   v.    Dickinson,    143    Mich.   250    284,  430 

Hudson  Village  v.  Whitney,  53  Mich.  158  ...173,  287,  410,  417,  418.  423 

Hughes  v.  Jordan,  118  Mich.  27  161,  197 

Hughes  v.  Recorder's  Court,  74  Mich.  574   15 

Humphrey  v.  Auditor  General,  70  Mich.  292   143,   1 7'.i 

Hunt  v.  Chapin,  42  Mich.  24    138,  176.  2O5 

Hunt  v.  Curry.  37  Ark.  104   143 

Hurd  v.  Raymond,  50  Mich.  369  100 

Huron  Land  Co.  v.  Robarge.  128  Mich.  686   213.  401 

Husted  v.  Willoughby,  117  Mich.  56   83 

Huxtable  v.  Kirby,  135  Mich.  157   IS4 

Hyatt  v.  Albro,  121  Mich.  638  401 

I 

Indiana  Road  Machine  Co.  v.  Keeney.  147  Mich.  184 125,  285 

Iron  Mountain  School  v.  O'Connor,  143  Mich.  35 

Illinois,  etc..  R.  Co.  v.  Irwin.  72  111.  452  SS 

Ionia  Board  v.  Judge,  134  Mich.  412  116 

Ionia,  etc..  Ins.  Co.  v.  Judge.  100  Mich.  606 416 

Ionia  City  v.  Wehse.  117  Mich.  487   78,  405 

Insurance  Co.  v.  Allegheny,  101  Pa.  St.  250 159 

Ins.  Co.  v.  Commissioner,  137  Mass.  81 .64 

Ins.  Co.  v.  New  Orleans,  1  Woods  85  1? 

Iron  Mountain  School  v.  O'Connor,  13  L.  N.  551,  14.1  Mich.  35.5*.  59 

Irving  v.   Brownell,  11   111.  402 197 

Ives  v.  Kimbalf,  1  Mich.  308  -'<••' 


TABLE    OF    CASES  664 


[REFERENCES  ARE  TO  SECTIONS] 

J.  E.  Bartlett  Co.  v.  Carroll,  14  L.  N.  921 ,  151  Mich.  233  368 

Jackson  v.  Detroit,  10  Mich.  248  376 

Jackson  v.  Mason,  12  L.  N.  1038,  143  Mich.  355  84,  402,  403 

Jackson  v.  Slowman,  117  Mich.  126  81,  84  • 

Jackson  v.  Weinhold,  117  Mich.  305  173,  174,  224,  '415 

Jackson,  Lansing  &  S.  R.  Co.  v.  Solomon  Lumber  Co.,  13  L.  N. 

720,    146    Mich.   204    53,   216,   248,    397 

Jackson  Mining  Co.  v.  Auditor  General,  32  Mich.  488   39,  407 

Jackson  Tile  Co.  v.  Snyder,  93  Mich.  325  294 

Jacobs  v.  Detroit,  13  L.  N.  544,  145  Mich.  395   74,  94 

Jacobs  v.  Union  Trust  Co.,  15  L.  N.  913  143 

Jakobowski  v.  Auditor  General,  13  L.  N.  99,  144  Mich.  46 397,  403 

James  v.   Howard,  4   Mich.   446    153 

Jeffers  v.   Sydham,   129  Mich.  440    154,   187 

Jeffery  v.  Hursh,  45  Mich.  59   185 

Jenison  v.   Conklin,   114  Mich.   9    197,  394 

Jemkenson  v.  Auditor  General,  104  Mich.  34   ..193,  212,  235,  387, 

394,    398,   404 

Jenks  v.  Hathaway,  48  Mich.  536  439,  443 

Jenks  v.  Horton,  96  Mich.  13    52,  154 

Jenney  v.  Mussey  Twp.,  121  Mich.  229   293 

John  Duncan  Land  &  Lumber  Co.  v.  Rusch,  145  Mich.  1 402.  403, 

437 

Johns  v.  People,  25  Mich.  499   46 

Johnson   v.    Bessemer   Council,   143   Mich.   313    21 

Johnson  v.  Kimball  Twp.,  139  Mich.  187  151 

Johnstone  v.  Scott,  11   Mich.  232   84,  162,  453 

Joliet  Bridge  Co.  v.  Freeman,  14  L.  N.  359,  149  Mich.  274 226,  281 

Jones  v.  Commissioners,  34  Mich.  273  '. 8,  329 

Jones  v.  Gable,  14  L.  N.  623 ,  150  Mich.  30 284,  296,  425 

Jones  v.  Keep,  19  Wis.  369  '. 41 

Jones  v.  Pelham,  84  Ala,  208   81 

Jones  v.  Wells,  31  Mich.  170  189 

Jones  v.  Wright,  34  Mich.  371   154 

Judkins  v.  Reed,  48  Me.  386  94 


Kahl  v.  Love,  37  N.  J.  L.  5 155 

Kalamazoo  v.  Crawford,  15  L.  N.  669   203 

Kalamazoo  v.  Francoise,  115  Mich.  55.4  352 

Kalkaska  Twp.  v.  Fletcher,  81  Mich.  446    75 

Kansas  City  v.  Duncan,  135  Mo.  583   383 

Kansas  Indians,  5  Wall.  737   58 

Kearney  v.  Kearney,  17  N.  J.  Eq.-  504 154 

Keeley  v.  Saunders,  99  U.  S.  441  379 

Keho  v.  Auditor  General,  138  Mich.  586  398 

Kenasten  v.  Rikes,  146  Mich.  163   ; 15,  18,  235 

Kennedy  v.  Auditor  General,  134  Mich.  534  52,  198,  397 

Kent  v.  Auditor  General,  138  Mich.  605   155.  156,  157 


C65  TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Kent  Co.  Board  v.  Verkerke.  128  Mich.  202  .173 

Kenyon  v.  Baker,  16  Mich.  37:i  .170 

Kenyon  v.  Board  of  Sup'rs.  138  Mich.  544  ,1.  .'si.  286,  188.  425 

Kerr  v.  Lansing,  17  Mich.  34   443 

Kerrigan  v.  People,  131  Mich.  305  

Keweenaw  Ass'n  v.  School  Dist.,  98  Mich.  437  . .  130 

Kiley  v.  Bond,  114  Mich.  447  244,  264,  265,  305 

King  v.  Harrington,  18  Mich.  213   

King  v.  Potter,  18  Mich.  134 86,  204,    213,  490 

King  v.  U.  S.,  99  U.  S.  229  152.  160 

Kingston  v.  Guck,  15  L.  N.  998 215 

Kinne  v.  Bare,  68  Mich.  625,  246,  249,  250,  256,  257,  259,  260,  263, 

264,  267,  260,  278,  293 

Kinne  v.  Bare,  80  Mich.  345  246,  251,  256.  262,  265,  966 

Kinsworth  v.  Austin,  23  Ark.  375   .., 155 

Kinyon   v.   Duchane,  21   Mich.  498    242.  S64 

Kitson  v.  Mayor,  26   Mich.  325    15,  89 

Kneeland  v.  Auditor  General,  113  Mich.  63  155,  199 

Knceland  v.  Hull,  116  Mich.  55   84.  85,  204,  391 

Kneeland  v.  Hymen,  118  Mich.  56 156,  227,  397.  398,  419,  439 

Kneeland  v.  Wood,  117  Mich.  174   155,  156,  397,  398,  419 

Knibbs  v.  Hall.   1  Esp.  84   157 

Knowlton  v.  Moore,  178  U.   S.  41   40 

Koones  v.  Dist.  Columbia,  4  Mackey  339   155 

Koren  v.  Roernheld,  7  111.  App.  646 39o 

Kress  v.  Probate  Judge,  92  Mich.  372  274,  275,  878 

Kroop  v.  Foreman,  31  Mich.  144  251,  257,  263,  268.  269,  273.  295 

Kuhn  v.  Detroit  Council,  70  Mich.  534   24 

Kull  y.  Dunn,  102  Mich.  581   71 

Kundinger  v.   Saginaw,  132   Mich.  395   321,  335.  360 

t 

L 

Lacey  v.  Davis,  4  Mich.  140 48,  101.  103,  114,  117.  142,  185.  201, 

203,  806,  209,  230.  2.1« 

Lacoss  v.  Wadsworth,  56  Mich.  421    ZO8.  21O 

Laing  v.  Forest  Twp.,  11  L.  N.  765.  139  Mich.  159  61.  160 

Laird  v.  Coach,  112  Mich.  628  204 

L.  S.  &  M.  S.  Ry.  v.  Grand  Rapids.  102  Mich.  374 32.  34,  436 

L.  S.  &  M.  S.  Ry.  v.  People,  46  Mich.  193  32 

Lake  Superior,  etc.,  Co.  v.  Auditor  General.  79  Mich.  351.  .438,  439.  446 
Lake  Superior,  etc.,  Co.  v.  Thompson,  56  Mich.  493..  115,  183,  124. 

142.  163 

Laketon  Twp.  v.  Akeley,  74  Mich.  695  w* 

Lambach  v.  O'Meara,  107  Mich.  29 886.  887,  896,  417 

Lampson  v.  Drain  Com'r,  45  Mich.  150  863 

Lampson  v.  Marshall,  133  Mich.  251  364,  366,  376 

Lancaster  v.  Wilson,  27  Gratt.  729   453 

Lane  v.  Burnap,  39  Mich.  736 265.  2«7,  488 

Langley  v.  Harmon,  97  Mich.  347  361 

Lanning  v.  Carpenter,  20  N.  Y.  447 43 

Lanning  v.  Palmer,  117  Mich.  529  886,  253.  280.  480 


TABLE   OF    CASES  666 

[REFERENCES  ARE  TO  SECTIONS] 

Lansing  v.  State  Auditors,  111  Mich.  327   58 

Lansing  Lumber  Co.  v.  Judge,  108  Mich.  305  416 

Lantis,  In  Re,  9  Mich.  324   425 

Lantis  v.  Reithmiller,  95  Mich.  45   133,  411 

Larimie  Co.  v.  Albany  Co.,  92  U.  S.  307  2 

Lamed  v.   Briscoe,   62   Mich.  393 370 

Latham  v.  Assessors,  91  Mich.  509  36,  64,  66,  94 

Latimer  v.  Lovett,  2  Doug.  204 209 

Latrobe  v.  Mayor,  19  Md.  13 76 

Launstein  v.  Launstein,  14  N.  773,  150  Mich.  524 314 

Laurium  Village  v.  Miller,  129  Mich.  536 152 

Leaton  v.  Murphy,  78  Mich.  77 165,  177,   181,  436 

Ledyard  v.  Auditor   General,   121   Mich.   56 381,  383 

Lee  v.  Inhabitants,  etc.,  13  Gray  479 157 

Lefevre  v.  Detroit,  2  Mich.  587 84,  345 

Leggett  v.  Detroit,   137   Mich.  247 57 

Leidlein  v.   Meyer,   95   Mich.   586 314 

Leloup  v.  Mobile,   127  U.   S.  640 15 

Lemon  v.   Chunn,   1   Black  336 202 

Lenawee  Co.  Savings  Bank  v.  Adrian,  66  Mich.  273 66,  436 

Lennon  v.  New  York,  55  N.  Y.  361 219 

Leonard  v.  Detroit,  108  Mich.  599 216 

Leroy  v.  East  Saginaw,  18  Mich.  233 153,  411 

Leon  v.  Newman,  130  N.  Y.  11 379 

Lever  v.   Grant,   139   Mich.   273 26 

Lewick  v.  Glazier,  116  Mich.  493 119 

Lewis  v.  Board  of  Education,  139  Mich.  307 362 

License   Cases,   5   How.   504 17,    20 

Lickley  v.  Bishopp,  14  L.  N.  735,  150  Mich.  256 242,  424,  426 

Life   Ins.   Co.  v.   Lott,   54  Ala.   499 36 

Lindsay  v.  Eastwood,  72  Mich.  336 145.  457 

Lingle  v.  Elmwood  Twp.,  12  L.  N.  703,  142  Mich.  194 92,  160 

Lipps   v.    Philadelphia,   38   Pa.   St.   503 352 

Livermore    v.    Burnap,    38    Mich.    350 265 

Livingston,  In  re,  121  N.  Y.  94 358 

Lombard  v.   Stearns,  4   Cush.   60 8 

Long  v.  Probate  Judge,  130  Mich.  338 284,  288 

Longyear  v.  Auditor  General,  72  Mich.  415 123,  241 

Longyear  v.   Buck,   83   Mich.   236 132 

Loomis  v.   Jackson,    130   Mich.   594 70 

Loomis  v.  Rogers  Twp.,  53  Mich.  135 125 

Loree  v.   Smith,   100   Mich.   252 257,  279r  425 

Lott  v.  Sweezey,  29  Barb.  87 157 

Loud  &  Sons  Lumber  Co.  v.  Elmer  Twp.,  123  Mich.  61 114 

Loud  &  Sons  Lumber  Co.  v.  Hagar,  126  Mich.  61 409 

Loud  &  Sons  Lumber  Co.  v.  Vienna  Twp.,  120  Mich.  382 157 

Louden  v.  East  Saginaw,  41  Mich.  18 157,  160,  225,  339,  409,  410 

Louisville,  etc.,  R.  Co.  v.  Boney,  117  Ind.  501 164 

Love  v.  Recorders  Court.  128  Mich.  160 15 

Lowe   v.    Detroit,    138    Mich.    541 101 

Lucking  v.  Ballantine,  132  Mich.  584 146 

Ludington   v.    Escanaba,    115    Mich.    288 140,  222 


667  TABLE   OF   CASES 

(REFERENCES  ARE  TO  SECTIONS] 

Ludington  Water  Co.  v.  Ludington,  119  Mich.  480 57.  120 

Lundbom  v.   Manistee,  93   Mich.  170 . .  876 

Luton  v.  Circuit  Judge,  69  Mich.  610 18,    23 

Lyon  v.  Harris,  52  Mich.  272 147,  158,  159.  160,  163,  411 


Mackinnon  v.  Auditor  General,  130  Mich.  552 ..57,  258 

Mager  v.  Grimax,  8  How.  490 40 

Magoun  v.  Savings  Bank,  170  U.  S.  288 40 

Maish  v.  Arizona,  164  U.  S.  599 3*8 

Maloney  v.  Mahar,  1  Mich.  26 47,  174 

Manistee  v.  Hasley,  79  Mich.  238 389.  438 

Manistee,  etc.,  R.  Co.  v.  Auditor  General,  115  Mich.  291 32,    34 

Manistee,  etc.,  R.  Co.  v.  Com'r,  118  Mich.  349 34 

Manistee  Lumber  Co.  v.  Springfield  Twp..  92  Mich.  277 83,  91,  125 

Manistee  Lumber  Co.  v.  Witter,  58  Mich.  625 13,    7& 

Manistee  River  Imp.  Co.  v.  Lamport,  49  Mich.  442 28 

Manistee  River  Imp.  Co.  v.  Lamport,  53  Mich.  593 28 

Mann  v.  Carson,   120  Mich.  631 

..78,  84,  155,  176,  196,  203,  217,  218,  224,  230,  3S5,  388,  397,  398,  404 

Marathon  Twp.  v.  Oregon  8  Mich.  372 100 

Marquette  v.   Dillon,  49  Mich.  244 25,  170 

Marquette  v.  Mich.  Land  Co.,  132  Mich.  130 61 

Marquette   Co.    v.   Ward,   50   Mich.    174 24,  152,  168 

Marquette,  etc..  R.  Co.  v.  Marquette,  35  Mich.  504 439 

Martin   v.   O'Connor,  37   Mich.  440 213 

Mason  v.  Gladstone  City,  93  Mich.  232 226,  291 

Mason  v.  Hazelton  Twp.,  82  Mich.  440 293 

Mason  v.  Muskegon,  ill  Mich.  687 410 

Mason  v.  New  Haven  Twp.,  82  Mich.  435 293 

Mason  v.  Railway  Co.,   104  Mich.  631 244 

Mason  v.  School  District,  34  Mich.  228 152,  166 

Mathews   v.    Carman,    110    Mich.    559 24 

Mathewson  v.  Grand  Rapids,  88  Mich.  558 362.  363.  365,  368,  889 

Mathias  v.  Drain  Com'r,  49  Mich.  465 263,  268,  271,  273.  302 

Mathias  v.  Drain  Com'r,  73  Mich.  5 301 

Matran  v.  Thompkins.  99  Mich.  528 286,  296,  800 

Maurer  v.    Cliff,   94    Mich.    194 48,77.    91 

Maynard  v.   Eaton  Judge,   108   Mich.  201 23 

Maxfield  v.  Wiley,  46  Mich.  252  203,  199 

Maxon  v.  Parrott,  17  Mich.  332  71 

Maxwell  v.  Auditor  General,  125  Mich.  621 427.  445 

Maxwell  v.   Paine.  53   Mich.  30 109,205 

Maybee  v.  Drain  Com'r.  45  Mich.  568 226,  273,  429 

Mayor.  In  re,  of  New  York.  11  John  R.  77....  345 

Mayot  v.  Auditor  General.  12  L.  N.  279.  140  Mich.  159... 84,  489,  453 

Mays  v.  Cincinnati,  1  Ohio  St.  268 158 

McBrian  v.  Grand  Rapids.  56  Mich.  95 385.  860 

McCulIum  v.  Bethany  Twp..  42  Mich.  457 100.  405 

McCouIIough  v.  Maryland,  4  Wheat.  316 1 


TABLE   OF    CASES  668 

i 

[REFERENCES  ARE  TO  SECTIONS] 

McCormick  v.  Bay  City,  23  Mich.  457 117,  152 

McCoy  v.  Anderson,  47  Mich.  502 74,92,411 

McCurdy  v.  Shiawasse  Co.,  15  L.  N.  873 103 

McDonald  v.  Escanaba,  62  Mich.  555 96,  107 

McDonald  v.  Springwells,  152  Mich.  28 317 

McElheny  v.  Drain  Com'r,  146  Mich.  191 425 

McFadden  v.  Brady,  120  Mich.  699 223,  385,  394,  439 

McFarlane  v.  Simpson,  153  Mich.  193 399 

McFarlan  v.  Cedar  Creek  Twp.,  93  Mich.  558 13,  125,  160 

McGee  v.  Bailey,  86  la.  513 379 

McGehee  v.  Malthis,  21  Ark.  40..'. 354 

McGinley  v.  Calumet,  etc.,  Mining  Co.,  121  Mich.  88.212,  389,  398,  399 

McGoon  v.  Scales,  9  Wall.  30 453 

McGregor  v.  Gladwin  Board,  37  Mich.  388 242 

McKenzie  v.  Murphy,  24  Ark.  155 73 

McKinnon  v.  Meston,  104  Mich.  19 205 

McMorran  v.  Wright,  74  Mich.  356 99 

McPherson,  In  re,  104  N.  Y.  306 38 

McRae  v.  Auditor  General,  146  Mich.  594 213,  217,  414 

Mead  v.  Haines,  81  Mich.  261  48,  94 

Mead  v.  Lansing,  56  Mich.  601, 160,410 

Meagher  v.  Dumas,  13  L.  N.  109,  143  Mich.  639 53,  419 

Mears  y.  Howarth,  34  Mich.  19 436 

Menominee  v.  Martin  Lumber  Co.,  119  Mich.  201 78,  405 

Menton  v.  Cook,  147  Mich.  540 319 

Merriams  Est,  In  Re,  147  Mich.  630  40 

Merrick  v.  Amhurst,  12  Allen  504 4 

Merrick  v.  Mayhue,  40  Mich.  196 385 

Merrill  v.  Auditor  General,  24  Mich.  170 48,  90,  92,  96,  437 

Merrill  v.  Austin,  53  Cal.  379 157 

Merritt  Twp. 'v.  Harp,  12  L.  N.  417,  141  Mich.  233 310 

Mersereau  v.  Miller,  112  Mich.  103 377,391 

Messenger  v.  Peter,  129  Mich.  94 108 

Metz  v.  Hipps,  96  Pa.  St.  15 379 

Michaels  v.  McRoy,  14  L.  N.  272,  148  Mich.  577 368 

Mich.  Com.  Improvement  Ass'n  v.  Auditor  General,  14  L.  N.  613 , 

150  Mich.  69 4 

Mich.  Dairy  Co.  v.  McKinley,  70  Mich.  574 78,  163,  222 

Mich.  Land,  etc.,  Co.  v.  La  Anse  Twp.,  63  Mich.  700 

5,  42,  116,  117,  122,  123,  124,  231 

Mich.  Land,  etc.,  Co.  v.  Republic  Twp.,  65  Mich.  628 

12,  125,  160,  232,  237 

Mich.  Mutual  Life  Ins.  Co.  v.  Detroit,  133  Mich.  408 137 

Mich.  Mutual  Life  Ins.  Co.  v.  Hartz,  129  Mich.  105 36 

Mich.  Power  Co.  v.  Atwood,  126  Mich.  651 411 

Mich.  Savings  Bank  v.  Detroit,  107  Mich.  246 94 

Mich.  Southern,  etc.,  R.  Co.  v.  Auditor  General,  9  Mich.  448 407 

Mich.  State  Bank  v.  Hastings,  Walk.  Ch.  9 58 

Mich.  Sugar  Co.  v.  Auditor  General,  124  Mich.  674 9,  10 

Micks  v.  Mason,  145  Mich.  212 21 

Midland  County  v.  Auditor  General,  27  Mich.  165 171 

Midland  Twp.  v.  Roscommon  Twp.,  39  Mich.  424 42,  123 


'>''•'  TABLE   OF    CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Miles  v.  Walker,  4  Mich.  641 

Millard   v.  Truax,  99   Mich.  157 377.  391,  394,  489 

Milier  v.  Brown,   122  Mich.   147   880 

Miller  v.  Gandby,  13  Mich.  540 135,  434,  448 

Milier  v.  Kalamazop,   140  Mich.  494 57,347 

Miller  v.  McLaughlin,   141  Mich.  425 40 

Miller  v.  Meils  Twp.,   144  Mich.  643 147,197,800 

Miller  v.  Smith,  115  Mich.  427 189 

Miller  v.  Steele,  13  L.  N.  686 ,  146  Mich.  123 156,  198,  4O4 

Miller  v.  Walker,  12  L.  N.  501 ,  141  Mich.  425 40 

Mills  v.  Detroit,  95  Mich.  422 337,  338,  341.  34J 

M ills  v.  Richland  Twp.,  72  Mich.,  100  ..101,  116,  117,  125,  160,  227,  241 

Mills  vs.  Van  Camp,  41  Mich.,  645 165 

Milton  v.  Drain  Com'r,  40  Mich.  229 257,  265,  268,  271,  295 

Milwaukee,  etc.,  R.  Co.  v.  Milwaukee,  34  Wis.  271 60 

Minor  Lumber  Co.  v.  Alpena,  97   Mich.  499 150,   157,409 

Mitchell  v.  Lake  Twp.,  126  Mich.  367 51,    77 

Mitchell  v.  Negaunee,  113  Mich.  359  3,  8,  96,  435 

Mitchell  v.  Williams,  27  Ind.  62 132 

Mogg  v.  Hall,  53  Mich.  576 153,  301,  412,  415 

Monaghan  v.  Auditor  General,  136  Mich.  247 197,  198,  206 

Monroe  v.  Greenhoe,  54  Mich.  9 75 

Monroe  Twp.  v.  Whipple,  62  Mich.  560 166 

Monroe  Water  Co.  v.  Frenchtown,  98  Mich.  431 r---51,    95 

Monroe  Water  Co.  v.  Heath,  115  Mich.  277 180 

Montpelier  Savings  Bank  v.  Quincey,  14  L.  N.  551,  149  Mich.  701..  118 

Moore  v.   Auditor  General,   122   Mich.   599    155 

Moore  v.  Mclntyre,  110  Mich.  237 226,  277,  425 

Merely  v.   Buchanan   Village,   124   Mich.   128 306 

Moret   v.    Mason,    106   Mich.   340 412 

Morey  v.   Brown,  42  N.  H.  373 138 

Morford  v.  Unger,  8  la.  82  4 

Morgan  v.  Parham,  16  Wall.  471 68 

Morgan  v.  Tweddle,  119  Mich.  350 227,  391,  398 

Morse  v.  Auditor  General,  13  L.  N.  101,  143  Mich.  610 

..* 53,   143,  209,  216,  419 

Morse  v.  Williams,  92  Mich.  250  426 

Morseman  v.   Ionia,  32   Mich.  283 260 

Morrice  Village  v.  Sutton.  139  Mich.  643 10 

Morrison   v.   Railway   Co.,  96   Mo.   602 884 

Moses  v.  White,  29  Mich.  59 116,  828,  838 

Moss  vs.  Cummings,  44  Mich.  359 48,  89,  153.  409 

Motz  v.  Detroit,  18  Mich.  495.. 12.  316.  352.  358.  360,  368,  365.  376,  414 

Mt.  Clemens  v.  Sherbert,  122  Mich.  147 15.    18 

Muirhead    v.    Bergland,   111    Mich.   655 389 

Muirhead  v.  Sands,  111  Mich.  4S7.179,  197,  198.  199,  377.  383,  384.385.391 

Mumford  v.  Sewall,  11  Or.  70 64 

Munroe  v.  Winegar,  128  Mich.  309 190,  196,  384.  445.  453 

Murphy  v.  Campau,  33   Mich.  71 808 

Murphy  v.   Dobben.   137  Mich.  565 886,  407.  447 

Murray  v.  Hudson,  65  Mich.  670 419 

Murrell  v.  Goodyear.  1  De  Gex,  F.  *  S.  488  188 


TABLE   OF    CASES  670 

[REFERENCES  ARE  TO  SECTIONS] 

Muscatine  City  v.  Packet  Co.,  45  la.  185 153 

Muskegon  v.  Boyce,  123  Mich.  535 96 

Muskegon  v.  Hanes,  14  L.  N.  489,  149  Mich.  460  17 

Muskegon  v.  Lange,   104  Mich.   19 67,  68 

Muskegon  v.  Martin  Lumber  Co.,  86  Mich.  625 174,  175,  238,  405 

Muskegon  v.  Muskegon  Co.,  123  Mich.  272  

Muskegon  v.  Soderberg,   111   Mich.   559 170 

Muskegon  v.  Zeeryp,  134  Mich.  181   17,  18,  19 

N 

Naegly  v.  Saginaw,  101  Mich.  532 369 

Napper  v.  Fitzpatrick,  11  L.  N.  780,  139  Mich.  139 456 

Nash  v.  Kenyon,  14  L.  N.  924,  151  Mich.  152 291 

Nathan  v.  State,  8  How.  373  30 

National  Loan,  etc.,  Co.  y.  Detroit,  136  Mich.  451 57 

Negley  v.  Sturgis  Council,  44  Mich.  1 24 

Negus  v.  Yancey,  22  la.  57 198,  199 

Nelson  v.  Saginaw,  106  Mich.  659 356,  376,  438 

Nester  v.  Baraga  Twp.,  133  Mich.  640 72,  94 

Nester  v.  Busch,  64  Mich.  657 212 

Nester  v.  Church,  121  Mich.  81 385,  391 

New  Albany,  etc.,  R.  Co.  v.  Peterson,  14  Ind.  112 315 

New  Orleans  v.  Huston,  119  U.  S.  265 68,  147 

New  Orleans  v.  Water  Co.,  142  U.  S.  79 2 

New  York  v.  Miln,  11  Peters  133 24 

Newaygo  Mfg.  Co.  v.  Eichtenaw,  81  Mich.  416 

117,  119,  120,  126,  213,  229,  241,  420 

Newaygo  Portland  Cement  Co.  v.  Sheridan  Twp.,  137  Mich.  475. .  51 

Newkirk  v.  Fisher,  72  Mich.  113 101,  124,  174,  230 

Newton  v.  Auditor  General,  131  Mich.  547 212,  391,  401,  446,  458 

Nicodemus  v.  East  Saginaw,  25  Mich.  452 158,  159,  239,  409 

Niles  Water  Co.  v.  Niles,  59  Mich.  311 120 

Nims  v.  Sherman,  43  Mich.  45 190 

Nitz  v.  Bolton,  71  Mich.  388 197 

Norris  v.  Hall,  124  Mich.  170 209 

North  Park  Bridge  Co.  v.  Walker  Twp.,  13  L.  N.  94,  143  Mich. 

693  30,  32 

Northrup  v.  Maneka,  126  Mich.  550  155,  397,  419 

Northwestern  Lumber  Co.  v.  Scott,  123  Mich.  357.147,  174,  175,  405,411 

Nowlen  v.  Benton  Harbor,  134  Mich.  401 349,  353,  376 

Nowlen  v.  Hall,  128  Mich.  274 380,  391,  419 

Nugent  v.  Erb,  90  Mich.  278 257,  263,  268,  287,  417 

Null  v.  Zierle,  52  Mich.  540 249,  300,  424 

o 

Orien,  In  Re,  119   Mich.  540 327 

Oceana  Co.  v.  Hart  Twp.,  48  Mich.  319 170,  217 

O'Connor  v.  Auditor  General,   127   Mich.  553 197,  205 

O'Connor   v.    Carpenter,    144   Mich.    240 205,  216 


C71  TABLE   OF    CASES 

[REFERENCES  ARE  TO  SECTIONS] 

O'Connor  v.  Gottschalk,  14  L,  N.  342,  14S  Mich.  450 100 

O'Connor  v.  Hogan,  140  Mich.  613 314 

Odlin   v.   Woodruff,  22  L.   R.  A.   699 68 

O'Donncl   v.   Pcrrin,   77    Mich.   173 197 

O'Halloran  v.   Mayor,  etc.,  107   Mich.   138 24 

Oliver  v.  Lynn,  130  Mass.  143  73 

Olmstead  v.  Tracey,   13   L.   N.  452,   145  Mich.  2VJ  186 

O'Marrow  v.   Port  Huron,  47  Mich.   585 15* 

Ontonagon  Co.  v.  Gogebic  Co.,  74  Mich.  721 110,  171 

Oppenborn  v.  Auditor  General,  12  L.  N.  67,  140  Mich.  92 171 

Orion  Twp.  v.  Axford,  112  Mich.  179 75,  154,  406 

Osborn  v.  Bank  of  U.  S.,  9  Wheat.  738 43* 

Osten  v.  Jerome,  93  Mich.  196 314 

Ostenhout  v.  Jones,  54  Mich.  228 75 

Otsego  Lake  Twp.  v.  Keisten,  72  Mich.  1 152 

Ottawa  Co.  v.  Auditor  General,  69  Mich.  1 110,  171 

Ovid  Twp.  v.  Haire,  133  Mich.  353 73,  151.  405 

Owens  v.  Auditor  General,  14  L.  N.  353,  147  Mich.  683 216,399,  451 


P 

Page  v.  Huckins,  14  L.  N.  599,  150  Mich.  103 314 

Page  v.   Webster,  8   Mich.   263 186 

Paine  v.  Boynton,  124  Mich.  194 155,  197,  198 

Paldi  v.  Paldi,  84  Mich.  386 89,  100,  106,  1  - 

Palmer  v.  Hartford,  Trustees,  73  Mich.  96 24 

Palmer   v.   Napoleon   Twp.,   16   Mich.    176 437,448 

Palmer  v.  Port  Huron,  11  L.  N.  911,  139  Mich.  471 339,  341 

Palmer  v.  Rich,  12  Mich.  414 290,  295,  298,  439,  445,  447 

Palmer   v.    Willett,    105    Mich.    86 274.278 

Pape  v.  Benton  Twp.,  140  Mich.  165 l'J.r. 

Pardee  v.   Freesoil  Twp.,  74   Mich.  81 77 

Paris  v.  Mayor,  etc.,  85  III.  597 82 

Parker  v.  Fields,  48  Mich.  250 305 

Parker  v.  Lincoln,  114  Mich.  306 267,  272.  278.  293 

Parker  v.   People,  22  Mich.  93 391 

Parmalee  v.   Chicago.  60   111.  267 57 

Parker  v.   Portland  Trustees,  54   Mich.  308 24 

Parsons  v.  Grand  Rapids,  12  L.  N.  507,  141  Mich.  467 

316,  321,  324.  344 

Passenger   Cases,  7    Howard   283 20 

Patrick  v.  Sherwood,  66  Mich.  319 154 

Patterson  v.  Grayling  Twp..   125  Mich.  126 71 

Patterson  v.  Judge.  13  L.  N.  269;  144  Mich.  416 285,  417,  429.  441 

Patterson  v.  Mead,  614  L.  N.  326.  148  Mich.  659 

'.248,  250.  258,  262,  264.  274,  285,  300.  424 

Paul  v.  Detroit.  32   Mich.  110 258 

Paw   Paw  Twp.  v.  Eggleston.  25  Mich.  36 152 

Paye  v.   Grosse   Pointe.   134   Mich.   524 16» 

Pearsall  v.  Eaton  Co.  Sup'rs,  71  Mich.  488 101 

Peck  v.   Grand   Rapids,   125   Mich.   416 817,221.324 


TABLE   OF    CASES  672 

[REFERENCES  ARE  TO  SECTIONS] 

Peet  v.  O'Brien,  5  Neb.  360 143 

Pelton  v.  Transportation  Co.,  37  Ohio  St.  450 72 

Pence  v.  Miller,  12  L.  N.  110,  140  Mich.  205 215,  216 

Peninsular  Iron  Co.  v.  Crystal  Falls  Twp.,  60  Mich.  79 160 

Peninsular  Iron  Co.  v.  Crystal  Falls  Twp.,  60  Mich.  510 

89,  94,  114,  117,  121,  137,  160,  238,  241 

Peninsular  R.  Co.  v.  Howard,  20  Mich.  18 242 

Peninsular  Savings  Bank  v.  Ward,  118  Mich.  87 

123,  126,  196,  389,  390,  453 

Pennoyer  v.  Saginaw,  8  Mich.  534  303 

People  v.  Armstrong,  73  Mich.  288  15,  18 

People  v.  Assessors,  40  N.  Y.  154  76 

People  v.  Auditor  General,  7  Mich.  84 12,  57 

People  v.  Auditor  General,  9  Mich.  134 57 

People  v.  Auditors,  59  Mich.  327  9 

People  v.  Babcock,  11  Wend.  586 24 

P'eople  v.  Baker,  115  Mich.  199. 18,  19 

People  v.  Banhagel,  151  Mich.  40  368 

People  v.  Barger,  62  111.  452 57 

People  v.  Bennett,  83  Mich.  457 15 

People  v.  Blom,  120  Mich.  40 15,  18,  20,  23 

People  v.  Bouchard,  82  Mich.  157 21 

People  v.  Brill,  120  Mich.  42 14 

People  v.  Brooklyn,  4  N.  Y.  419  38 

People  v.  Bunker,  128  Mich.  160 17,  21 

People  v.  Campbell,  72  N.  Y.  496 361 

People  v.  Campfield,  150  Mich.  675 368 

People  v.  Case,  15  L.  N.  363,  153  Mich.  98 21 

People  v.  Christian,  144  Mich.  247 216 

People  v.  Clements,  68  Mich.  655  163 

People  v.  Com'rs,  2  Black  620 1 

People  v.  Com'rs,  4  Wall.  244 69 

People  v.  Com'rs,  82  N.  Y.  462 51 

People  v.  De  Blaay,  137  Mich.  402 19 

People  v.  Decker,  141  Mich.  304 16,  IS 

People  v.  Detroit,  etc.,  R.  C.,  1  Mich.  458 1,  32 

People  v.  Equitable  Trust  Co.,  96  N.  Y.  387 38 

People  v.  Furman,  85  Mich.  110 20 

People  v.  Gardner,  143  Mich.  104 14 

People  v.  Gebhard,  151  Mich.  192 21 

People  v.  Gresser,  67  Mich.  490 23 

People  v.  Guarantee  Trust  Co.,  15  L.  N.  904 368 

People  v.  Halsey,  53  Barb.  547 287,  417 

People  v.  Hammond,  1  Doug.  276 195,  197 

Peop'e  v.  Henckler,  137  111.  580.. 143 

People  v.  Hotchkiss,  118  Mich.  59 18,  19 

People  v.  Howard,  73  Mich.  10 224 

People  v.  Jewell,  138  Mich.  620 231 

People  v.  Johr,  22  Mich.  461  47 

Peoole  v.  Judge,  39  Mich.  197 224 

People  v.  Kropp,  52  Mich.  582 23 

People  v.  Lanning,  73  Mich.  284 24 


TABLE   OF    CASES 

[REFERENCES  ARE  TO  SECTIONS] 

People   v.    Leavitt,  41    Mich.   470 414 

People  v.  Lynch,  51  Cal.  15 210 

People  v.  Lyng,  10  Sup.  Ct.  Rep.  725 

People  v.  Mahoney,  55  Cal.  286 81 

People  v.  Maynard,  15  Mich.  463 43 

People  v.  Mayor  of  Brooklyn,  4  Comst.  423 316 

People  v.  Mich.  Southern  R.  Co.,  4  Mich.  398 32 

People  v.  Newberry,  152  Mich.  292 366 

People  v.  Onondaga  Board,  10  Mich.  269 220 

People  v.   Pequin,  74   Mich.  35 SO 

People  v.  Rhodes,   15   111.   13 14 

People   v.    Russell,   49   Mich.   619 19 

People  v.  Salem,  20  Mich.  452 3,  4,      9 

People   v.   Seeley,    117    Mich.   263 155 

People  v.  Solomon,  54  111.  41 

People  v.  Sawyer,  106  M  ich.  428 21 

People  v.  Smith,  131   Mich.  70 163 

People   v.   Soule,   74   Mich.   250 22 

People  v.  Springwells  Board,  25  Mich.  153 6 

People  v.  State  Auditors,  9  Mich.  327 10 

People  v.  Voorhis,  131  Mich.  398 16.     17 

People   v.   Wadsworth,   63   Mich.   500 153 

People  v.   Walling,  53   Mich.   264 17,18,    20 

People  v.  Whartenby,  38  Cal.  461 14 

People  v.  White  Lead  Wks.,  82  Mich.  471 18 

Pere  Marquette  R.  Co.  v.  Ludington,  133  Mich.  397 32,  158 

Pere  Marquette  R.  Co.  v.  Weilnan.  16  L.  N.  (filed  July  15) '-M4 

Perkins  v.  Nugent,  45  Mich.  156  92,  96,  241 

Perrizo  v.  Jstephenson  Twp.,  12  L.  N.  373,  141  Mich.  167 121 

Perry  v.   Big  Rapids,  67  Mich.  146 70 

Perry  v.  Hepburne,  4   Mich.   165 115 

Perry  v.  Reed,  13  L.  N.  979 ,  147  Mich.  146 309 

Peters  v.  Youngs,  122  Mich.  484. 404,  456 

Peterson  v.  Ionia,   152  Mich.  678 335 

Petrie  Lumber  Co.  v.  Collins,  66  Mich.  64 78,  163,  2» 

Pettibone  v.  Smith,  37  Mich.  579 318 

Pettit  v.  Flint  &  P.  M.  R.  Co..  114  Mich.  362 83 

Phelps   v.   O'Connor,   137   Mich.  625 400,451 

Phcnix  v.   Dark.  82   Mich.   328 48 

Philadelphia  v.  Tryon,  35  Pa.  St.  401 352 

Philips  v.   Lewis,   109   Ind.   62 390 

Philips  v.  New  Buffalo  Twp.,  64  Mich.  683 95 

Philips  v.  New  Buffalo  Twp.,  68  Mich.  217 150.  212, 

Picotter  v.  Whalley,   80    Mich.   257    ' 79,   257.280 

Pierce  v.   Baughman,   14    Pick.   356 1-1 

Picrpont  v.   Osmun,   118   Mich.   472 401 

Pierson  v.  Ionia,  15  L.  N.  189  363 

Pike  v.  Richardson,  136  Mich.  414 198,  403.  404 

Pillsbury  v.  Auditor  General,  26  Mkh.  245 138.  437.  4t« 

Pine  Co..  In  Re,  56  Minn.  288  51 

Pingree  v.  Auditor  General,  120  Mich.  95  29.    87 

Pioneer  Fuel   Co.   v.   Molloy.   116   Mich.  430 48.    M 

(48) 


TABLE   OF    CASES  674 

[REFERENCES  ARE  TO  SECTIONS] 

Pixley  v.  Huggins,  15  Cal.  128 438 

Plainfield  Twp.  v.  Sage,  107  Mich.  19 77 

Platt  v.  Stewart,  10  Mich.  260  230,  240,  304 

Platz  v.  Englehardt,  138  Mich.  485 53,389,419,420 

Plymouth  R.  Co.  v.  Colwell,  39  Pa.  St.  337 164 

Polk  Co.  Bank  v.  Iowa,  69  la.  29 58,  346 

Pollock  v.  Sowers,  137  Mich.  368 278,  288 

Pond  v.  Drake,  50  Mich.  302 189 

Pontiac  v.  Axford,  49  Mich.  69 117,235,405 

Port  Huron  v.  Jenkinson,  77  Mich.  414.. 18,  327 

Port  Huron  v.  Wright,  14  L.  N.  720,  150  Mich.  279 40,  97,  456 

Port  Huron  Twp.  v.  Potts,  78  Mich.  435 171,  172,  249 

Porter  v.  Corbin,  124  Mich.  201 189 

Porter  v.  Stanley,  47  Me.  515 152 

Porter  v.  Van  Dyke,  31  Mich.  176 214 

Portland  Bank  v.  Althorp,  12  Mass.  252  38 

Portsmouth  Savings  Bank  v.  Ashley  Village,  91  Mich.  670 369 

Portsmouth  Twp.  v.  Cranage  Steamship  Co.,  14  L.  N.  81 ,  148 

Mich.  230  62,  94 

Post  v.  Harris,  95  Mich.  321 138,  286 

Post  v.  Sparta  Village,  58  Mich.  212 21 

Post  v.  Sparta  Village,  64  Mich.  597  24 

Post  v.  Sparta  Village,  61  Mich.  323  24 

Potter  v.  Homer  Village,  58  Mich.  212 19,  24 

Powers  Appeal,  29  Mich.  504 339,  433 

Powers  v.  Detroit,  11  L.  N.  742,  139  Mich.  30 

334,  343,  344,  350,  353,  371,  376 

Power  v.  Litchfield  Village,  141  Mich.  350 24 

Powers  v.  Grand  Rapids,  98  Mich.  393 343,  438 

Preston  v.  Boston,  12  Pick.  13 157 

Price  v.  Hunter,  34  Fed.  R.  355 76 

Pringle  v.  Wagoner,  110  Mich.  612 188 

Purdy  v.  Martin,  31  Mich.  455 265 

Putnam  v.  Fife  Lake  Twp.,  45  Mich.  125 75,  139,  405 

Putnam  v.  Grand  Rapids,  58  Mich.  416 120,  123 

Q 

Quay  v.  Cheboygan  Judge,  14  L.  N.  700 ,  150  Mich.  457 24 

Quinlan   v.    Manistique,    85    Mich.    23 141 

Quinlan  v.   Rogers,  12  Mich.   168 205,  214 

R 

Raber  v.  Hyde,   138   Mich.   101 205 

Railway  Co.  v.  Com'rs,  112  U.  S.  609 34 

Railway  Co.  v.  Langdale,  56  Wis.  614 . .  45 

Railway  Co.  v.  Milwaukee,  4  Wis.  47 59 

Ramsey  v.  Everet  Twp.   Clerk,  52  Mich.  344 415 

Randell  v.  Ellwell,  52   N.  Y.  521 164 

Raymond  v.  McKenna,   147  Mich.  35 374 


675  TABLE  OF    CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Rayner  v.  Lee,  20  Mich.  3S4 79,  SOS 

Raynesford  v.  Phelps,  43  Mich.  342 .  iw,  1:4 

Rayncsford  v.   Phelps,  49  Mich.  315 143 

Rea   y.   Rea,   63   Mich.   257 154 

Redding  v.  Lamb,  81  Mich.  318 

Reed  v.  Auditor    General,  746  Mich.  208 :M5 

Reilly  v.  Blaser,  61  Mich.  399 SIS 

Reinnig  v.  Munson,  46  Mich.  138 265 

Reithmiller  v.  People,  44  Mich.  280 IS 

Rens  v.  Grand  Rapids,  73  Mich.  237 363 

Reynolds  v.  Baughagle,  151  Mich.  40 349 

Ricardi  v.   Bellaire  Village,  153  Mich.  570 337 

Rice   v.   Auditor   General,   30   Mich.    12 

Rice  v.   Flint,  67  Mich.  401 396,  4i7 

Rice  v.  Muskegon,  14  L.  N.  820,  150  Mich.  679 94 

Rice  v.  Probate  Judge,  141  Mich.  693.  .242,  246,  249,  250, 285, 286,  29<v 

Rice  v.  Sydney  Twp.,  44  Mich.  37   149,  15« 

Richards  v.  Ann  Arbor  15  L.  X.  142,  152  Mich.  15 308 

Richards  v.  Bellaire  Village,  153  Mich.  560 319,  329,  338 

Richards  v.  Richards,  75  Mich.  408 184 

Richardson  Lumber  Co.  v.  Jasspon,  13  L.  N.  416,  145  Mich.  3.. 202,  403 

Rising  v.  Granger,   1   Mass.  48 79 

River  Rouge  v.  Judge,  147  Mich.  204 414,416 

Roath  v.   Driscoll,  20  Conn.  533 315 

Robbins   v.   Barron,   32   Mich.  36 206 

Robbins  vs.  Barron,  33  Mich.  124 104,  138. 

Robbins   v.   Barron,   34   Mich.   517 211,420 

Robbins  v.  Taxing  District,  120  U.  S.  489 15 

Roberts  v.   Charlevoix,  60  Mich.  197   62 

Roberts  v.  Denio,  118  Mich.  544 411 

Roberts  v.  Loxley,  121  Mich.  63 381,  389 

Roberts  v.   Smith,   115   Mich.  5 257,264.429 

Robertson  v.   Baxter,  57  Mich.  27 244,  245,  297,  441 

Robertson  v.  Land  Com'r,  44  Mich.  274 54,  61,  76,  144 

Robinson  v.  Assessors,  95  Mich.  516 36,    64 

Robinson   v.    Detroit,    107    Mich.    168 332 

Robinson  v.  Minor,  68  Mich.  549 18,  23,    24 

Rode  v.  Phelps,  80  Mich.  610 S4 

Rodgers  v.  Judge,  115  Mich.  441 17 

Roe  v.   Williston,  20   Wis.  228 Itt 

Roedell  v.  White  Cloud,  108  Mich.  506 158 

Roediger   v.   Drain   Com'r,   40   Mich.  745 4*9 

Rogers  v.  White,  68  Mich.  10 116,  115.  141,  MS 

Rogers  Est.  In  re,  14  L.  N.  444 ,  149  Mich.  305 40 

Ronkendorf  v.  Taylor,  4   Peters  349 174 

Roscommon  Twp.  v.  Midland  Twp.,  39  Mich.  424 5 

Roscommon  Twp.  v.  Midland  Twp.,  49  Mich.  454 170.  171.  414 

Rose  v.  Ann  Arbor  Council.  134  Mich.  102 SI 

Rosentheil  v.   Miller,  96  Mich.  99 294 

Rossman  v.   Adams,  91   Mich.  69 416,434 

Rothchild  v.  Begole.  105  Mich.  388 154 

Rowland  v.  Doty,  Har.  Ch.  3 205.  209.  439 


TABLE   OF    CASES  676 

[REFERENCES  ARE  TO  SECTIONS] 

Rummel  v.  Lamb,  100  Mich.  424 312 

Rumsey  v.   Griffin,  138  Mich.  413 290,  399,  439,  453 

Rumsey  v.  People,  19  N.  Y.  41 43 

Rushville  Gas  Co.  v.  Rushville,  121  Ind.  206   . .-. 8 

Russell   v.    Chittenden,    123    Mich.    545 377 

Russell  v.  Hudson,  28  Kan.  100   143 

Ryerson  v.  Eldred,  18  Mich.  12 190 

Ryerson  v.  Laketown  Twp.,  52  Mich.  509 121,  125 

Ryerson  v.  Muskegon,  57  Mich.  383 75 

Ryerson  v.  Utely,  16  Mich.  269 4,  6,     13 

s 

Safford    v.    Basto,   4   Mich.   406 413 

Sage  v.  Auditor  General,  72  Mich.  638 114,  126,  136,  143,  431 

Sage  v.  Burlingame,  74  Mich.  120 78 

Saginaw  v.  Circuit  Judge,  106  Mich.  32 18,  19 

Saginaw  v.  Swift  Electric  Light  Co.,  113  Mich.  660 18 

Saginaw,  Board  v.  Hubinger,  137  Mich.  72 11,     58 

Saltonstall  v.   Board  of  Review,   132  Mich.   196 100 

Sanborn  Co.  v.    Alston,  15  L.  N.  531,  153  Mich.  456 402,  404 

Sanborn  v.  Johnson,  14  L.  N.  248,  148  Mich.  405 402,  404 

Sands  v.  Davis,  40  Mich.  14 18i 

Sands  v.  Manistee,  123  U.  S.  288 , 1 

Saunders  v.  Iowa  City,  111  N.  W.  la.  529   '. 336, 

Savidge  v.  Spring  Lake,  112  Mich.  92 117,  120,  456 

Savings  Bank  v.  Auditor  General,  123  Mich.  511 215 

Sawyer  Goodman  Co.  v.  Crystal  Falls  Twp.,  56  Mich.  597 

89,   96,   117,   121,  241 

Sayers  v.  Auditor  General,  124  Mich.  259 391,  45O 

Sayers  v.   O'Connor,   124   Mich.   256 384,391 

Schaale   v.   Wasey,   70   Mich.  414 384 

Schehr  v.  Detroit,  45  Mich.  626 353 

Schenk  v.  Probate  Judge,  McGrath  Mandamus  cases  No.  614 277 

Schliess  v.  Grand  Rapids,  131  Mich.  52 364,  376 

Schmidt  v.  Circuit  Judge,  138  Mich.  452 ." 417 

Schmidt  v.  Frankfort,  131  Mich.  197 317,  36» 

Schmitt  v.  Clinton  Council,  111  Mich.  99 24 

Schneewind   v.    Niles,    103    Mich.   301 3. 

Schneider  v.  Detroit,  135  Mich.  540 142,  198,  207,  215,  439 

Scholey  v.   Rew,   23    Wall.   331 4O 

Scholtz  v.   Ely,   123   Mich.   541 284 

School  Dist.  v.  Clark,  90  Mich.  435 129,  231,  233,  236 

School  Dist.  v.  Dean,  17  Mich.  223 167 

School  District  v.  School  Dist,  63  Mich.  51 129,  167 

Schribner  v.  Grand  Rapids,  119  Mich.  188   327 

Schulte  v.  Auditor  General,  131  Mich.  676 178 

Schultz   v.    Hoffman,   127   Mich.   276 307 

Schultz  v.  Smith,    119    Mich.    634    287 

Scofield  v.  Lansing,  17  Mich.  437 321,  334,  373,  437,  442 

Scott  v.  Young  Men's  Society,  1  Doug.  419 209- 


TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Scott  v.  Whelan,  90  Mich.  624 411 

Scotten  v.  Detroit,  106  Mich.  564 323,  339,  417, 

Seaman  v.   Marshall,   116   Mich.  327.  306 

Sears   v.   Cottrell,   5   Mich.   274 161 

Second  National  Bank  v.  Lansing,  25  Mich.  207 368 

Semer  v.   Wildey,   133   Mich.   569 53 

Serrell  v.  Probate  Judge,  107  Mich.  234 271 

Seymour  v.  Peters,  67  Mich.  415 78,  124,  140,  142,  174 

Shaff  v.  O'Connor,  146  Mich.  504 .397,  453 

Sharpless  v.  Mayor,  21  Pa.  St.  168 4,  is 

Shaw  v.   Morely,  88  Mich.  313 318 

Shaw  v.  Ypsilanti,  13  L.  N.  922 ,   14D  Mich.  712 376 

Shefferly  v.  Auditor  General,  120  Mich.  455 ..162,  179,  391 

Sheldon  v.  Marion  Twp.,  101  Mich.  256 887,  391 

Sheldon  v.  School  Dist.,  24  Conn.  91 157 

Sheley  v.  Detroit,  45  Mich.  431 325,  35S 

Sheppard  v.  Sumpter  Co.,  59  Ga.  535 38 

Sherlock  v.  Stuart,  96  Mich.  193    15,  17.  81 

Sherman  v.  A.  P.  Cooke  Co..  98  Mich.  61  145 

Sherman  v.  Fisher,  138  Mich.  391 184,  206,  228,  240 

Sherman   v.   Sanilac   Co.,   84   Mich.   108 391 

Sherman  City  v.  Smith,  12  Tex.  Civ.  App.  580 i  H 

Sherwood  v.  Ryerson,  12  L.  N.  395 ,  141  Mich.  92 286 

Shiawassee  Co.  v.  Hazelton  Twp.,  82  Mich.  440 170,  171.  217 

Shimmons  v.   Saginaw,   104   Mich.  512 

321,  325,   342,  344.   353,   367.  371,  375,  438 

Shippey  v.  Mason,  90  Mich.  45 118 

Shively   v.   Hume,    10   Or.   76 315 

Shouk  v.  Brown,  61     Pa.  St.  327 2H 

Shue  v.   Highway  Com'r,  41   Mich.  638 265 

Shulte  v.  Auditor  General,  131   Mich.  676 156,  173 

Sibley  v.  Smith,  2  Mich.  487 

46,  82,  101,  180,  202.  203,  208.  209,  229.  236,  841 

Siebert  v.  Woeval,  61  N.  W.  R.  197,  la 250 

Silshee  v.  Stockle,  44  Mich.  561 

100,  106,  131,   136,  208,  209,  214.  230,  841,  420 

Simons  v.  Rood,  129  Mich.  345 185,  186.  191 

Simpkins   v.   Ward.   45   Mich.   559 130.439 

Sinclair  v.  Learned,  51  Mich.  335 

100,  142.  200,  207,  211.  212.  214,  219,  822,  48O 

Sirr  v.   Miller.  121   Mich.  598 810 

Sisters  of  Charity  v.  Detroit.  9  Mich.  93 Si 

Skinner  v.  Grace  Church.  54  Mich.  143 197 

Sleight  v.  Roe.  125  Mich.  585 186,  213 

Sligh  v.  Grand  Rapids.  84  Mich.  497 889 

Sloman  v.  Moebs  Co..  138  Mich.  334 17 

Smafield  v.  Smith.  15  L.  N.  4*2.  153  Mich.  270 309.  441 

Smith  v.  Auditor  General,  20  Mich.  398 110.  821,  407.  437 

Smith  v.  Auditor  General.  138  Mich.  582 386,  Ml.  898,  453 

Smith  v.  Auditor  General.  15  L.  N.  65.  151.  Mich.  622 397.  41', 

Smith   v.   Blindbury.   66   Mich.   319 58,154 

Smith  v.  Board  of  Sup'rs.  115  Mich.  208 888,886.  302.  414 


TABLE   OF    CASES  678 

[REFERENCES  ARE  TO  SECTIONS] 

Smith  v.  Carlow,  114  Mich.  67 

226,  246,  249,  257,  266,  282,  284,  302,  430,  457 

Smith  v.  Crittenden,  16  Mich.  152 114,  116,  135,  413 

Smith  v.  Detroit,  120  Mich.  572 359,  438 

Smith  v.  Hubble,  142  Mich.  637 368 

Smith  v.  Jones,  136  Mich.  532 130,  167,  415 

Smith  v.  Macon,  20  Ark.  17 379 

Smitfi  v.  Tecumseh  Bank,  17  Mich.  479 69,363 

Smith  v.  Titcomb,  31  Me.  286 287,  417 

Snyder  v.  Marks,  109  U.  S.  189 432 

Solomon  v.  Oscoda  Twp.,  77  Mich.  367 9fc 

Spanish  River  Lumber  Co.  v.  Bay  City,  113  Mich.  181 7? 

Sparrow  v.  Land  Com'r,  56  Mich.  567  6 

Sparta  Village  v.  Booram,  129  Mich.  555 20 

Spaulding  v.  O'Conner,  119  Mich.  45 385,  391,  392,  399 

Spitzer  v.  Blanchard  Village,  82  Mich.  234 369 

Springfield  v.  Green,  120  111.  269  317,  344 

Spring-wells  Twp.  v.  Wayne  Co.,  58  Mich.  240 25,  169 

St.  Johns  National  Bank  v.  Bingham  Twp.,  46  Mich.  526 

68,  146,  147,  431 

St.  Joseph  v.  Vail,  137  Mich.  276 405 

St.  Joseph  Bank  v.  St.  Joseph  Twp.,  46  Mich.  526.46,  69,  149,  150,  241 

St.  Louis  v.  Ferry  Co.,  11  Wall.  423 62 

St.  Louis  v.  Oesters,  36  Mo.  456 354 

St.  Louis  v.  Sickles,  52  Mo.  122  152 

St.  Marys  Power  Co.  v.  Chandler,  133  Mich.  470 186,  215 

St.  Paul  v.  Railway  Co.,  39  Minn.  112 '. 59 

Staley  v.  Columbus,  36  Mich.  38 153,155,405 

Stambaugh  Twp.  v.  County  Treasurer,  15  L.  N.  368 ,  153  Mich.  104,  169 

Standard  Life  Ins.  Co.  v.  Assessors,  91  Mich.  517 36,  64 

Standard  Life  Ins.  Co.  v.  Assessors,  95  Mich.  466 12,  36,  66 

Stanton  Est.,  In  Re,  12  L.  N.  829,  142  Mich.  491.  .40,  63,  64,  65,  76,  154 

Starch  Factory  v.  Dalloway,  21  N.  Y.  449 72 

Starkweather  v.  Chatfield,  14  L.  N.  482,  149  Mich.  443 250 

Starr  v.  Shepard,  13  L.  N.  528,  145  Mich.  302 61,  165,  180,  431,  442 

State  v.  Algood,  87  Tenn.  163 224 

State  v.  Alston,  94  Tenn.  674 40 

State  v.  Atherton,  40  Mo.  209 152 

State  v.  Baker,  13  L.  R.  A.  N.  S.  40 21 

State  v.  Berka,  20  Neb.  375 224 

State  v.  Board  of  Education,  24  Wis.  683 361 

State  v.  Bunker,  59  Me.  366 43 

State  v.  Eddy,  58  Mich.  318 393 

State  v.  Eureka  Co.,  8  Nev.  15 93 

State  v.  Ferris,  53  Ohio  St.  314 40 

State  v.  French,  30  L.  R.  A.  415  18 

State  v.  Gorman,  40  Minn.  232 40 

State  v.  Hamlin,  861  Me.  495 40 

State,  v.  Jersey  City,  29  N.  J.  441 365 

State  v.  Lathrop.  10  La.  Ann.  402 12 

State  v.  Mayor,  14  L.  R.  A.  64 384 

State  v.  Mayor,  36  N.  J.  L.  288 82 


679  TABLE   OF   CASES 

[REFERENCES  ARE  TO  SECTIONS] 

State  v.  Nelson,  41  Minn.  25 .157 

State  v.   Newark,  2   Dutcher  519 

State  v.  Providence  Bank,  4  Peters  514 60 

State  v.  Runyon,  41  N.  J.  L.  105 94 

State  v.  Switzler,  143  Mo.  287 40 

State  v.  Toledo,  48  Ohio  St.  112 

State  v.  Trustees.  11  Ohio  24 

State  Land  Com'r  v.  Auditor  General,  131   Mich.  147  53,  219 

State  Tax  Commission  v.  Assessors,  124  Mich.  492...  «7,  111 

State  Tax  Commission  v.  Cady,  124  Mich.  683 

State  Tax  Commission  v.   Quinn,   125   Mich.   128 97,  lit 

State  Tax  Law  Cases,  54  Mich.  350 805  401 

State  Tax  Bond  Cases.  15  Wall.  300  

State  Treasurer  v.  Auditor  General,  46  Mich.  224 33 

State  Treasurer  v.  Louisville,  etc.,  R.  Co.,  4  Dutch,  21,  la 164 

Steamboat  Co.  v.  Buffalo,  82  N.  Y.  351 

Steckert  v.  East  Saginaw,  23  Mich.  104 

117,  319,  322,  324,  349,  353,  370,  372,  376 

Stegenga,  In  Re,  133  Mich.  56  

Stellwagen  v.  Durfee,  130  Mich.  166 40 

Stephens  v.  Cady,  14  How.  531  70 

Stephenson  v.   Martin,  84   Ind.  161 143 

Stevens  v.   Gladding,   17   How.  451 70 

Stevens  v.  Muskegon,  111  Mich.  72 306,  441 

Stevens  v.  Port  Huron,  14  L.  N.  559,  149  Mich.  536 329 

Stevens   v.    Railway   Co.,   31   Barb.   590 166 

Stevenson  v.  Bay  City,  26  Mich.  45 232,  235 

Stewart  v.  Detroit,  137  Mich.  381 376 

Stewart  v.   Welton,   39   Mich.    59 Tl 

Stilson  v.   Gibbs.   46   Mich.   215 , 71 

Stock  v.  Jefferson  Twp.,  114  Mich.  357 313 

Stockle  v.  Silsbee,  41  Mich.  615 

46,  126,  141,  142,  151,  173,  174,  177,  209,  211,  228.  240,  330,  409 

Stockwell  v.  White  Lake  Twp.,  22  Mich.  341   

Stoddard  v.   Prescott,  58  Mich.  542 243,  438 

Strachan  v.  Drain  Com'r.  39  Mich.  168 265.270 

Strack  v.  Miller,  134  Mich.  311  262.  414.  430.  441 

Stradley  v.  Cargill  Elevator  Co.,  135  Mich.  367 163 

Strang,  ex  parte,  21  Ohio  St.  610 45 

Strode  v.  Com'r,  52  Pa.  St.  181 40 

Stroh   v.   Detroit,   131   Mich.   109 14,    65 

Strong  v.  Campbell,  11  Barb.  138 361 

Stuart  v.  Palmer,  74  N.  Y.  183  88 

Stuart  v.  School  Dist.,  30  Mich.  70 43,  1W 

Sturgis  v.  Flanders,  97  Mich.  546 . .  406 

Sturm  v.  Kelly,  120  Mich.  685 248.  259,  261,  278,895 

Sullivan  v.  Tinsman,  File  No.   11,953,  Sup.  Ct 845 

Sun  Printing,  etc..  Ass'n,  New  York,  152  N.  Y.  857..  .     11 

Surget  v.  Lapice,  8  How.  48  . .  818 

Swan  Creek  Twp.  v.  Brown.  130  Mich.  382.... 223,  258,  484.  430,  445 


TABLE   OF   CASES  '680 


[REFERENCES  ARE  TO  SECTIONS] 

Talbot  Paving  Co.  v.  Detroit,  109  Mich.  657 361 

Talbot  Paving  Co.  v.  Detroit  Council,  91  Mich.  262 361 

Tanner  v.  Billings,  18  Wis.  163 71 

Tawas,  etc.,  R.  Co.  v.  Circuit  Judge,  44     Mich.  479 416 

Taylor  v.  Avon  Twp.,  73  Mich.  604 293 

Taylor  v.  Burnap,  39  Mich.  739 226,  264,  304 

Taylor  v.  Deveaux,  100  Mich.  581 205,  207,  214,  380 

Taylor  v.  Roniger,  147  Mich.  100 102,  189 

Taylor  v.  Snyder,  Walk.  Ch.  490 181 

Taylor  v.  Youngs,  48  Mich.  268 13,  52,    83 

Taylor  v.  Ypsilanti,  105  U.  S.  60 9 

Taymouth  Twp.  v.  Kohler,  35  Mich.  22 119,  129,  283 

Teagan    Trans.    Co.   v.    Board   of   Assessors,    11    L.    N.    731,    139 

Mich.    1    62,     72 

Tecumseh  Telephone  Co.  v.  Auditor  General,  120  Mich.  95,  same  as 

Pingree  v.  same. 

Temple  v.  Preston,  14  L.  N.  772,  150  Mich.  486 389 

Tenney  v.  Lentz,  16  Wis.  566 132 

Thayer  v.   Grand  Rapids,   82   Mich.  298 ..344,368 

Thayer  Lumber  Co.  v.  Muskegon,  15  L.  N.  72,  152  Mich.  59.... 

322,    335,    339,  414 

Thayer  Lumber  Co.  v.  Springwells  Twp.,  131  Mich.  12 123 

Thomas  v.  Auditor  General,  120  Mich.  535 399,  442,  446 

Thomas  v.  Collins,  58  Mich.  64 245 

Thomas  v.  Gain,  35  Mich.  155 

334,  339,  354,  355,  373,  414,  427,  439,  445,  449 

Thomas     v.  Hamilton,  101  Mich.  387 24 

Thomas  v.  Judge,   116  Mich.  606 416 

Thomas  v.  Moore,  120  Mich.  535 397,  398 

Thomas  v.  Port  Huron,  27  Mich.  320 9 

Thomas  v.  Walker  Twp.,  116  Mich.  597 278,  289,  414 

Thompson  v.  Detroit,  114  Mich.  502 98,  101,  159,  351,  356,  357,  375 

Thompson  v.  Mecosta  Village,  127  Mich.  522 406  458 

Thompson  v.  Mecosta  Village  141   Mich.   176 369 

Thompson  v.  Noble,  108  Mich.  29 56 

Thompson   v.   Sagge,  47   la.   524 143 

Thompson  v.  Ward,  105  Mich.  388 154 

Thrall  v.  Guiney,  12  L.  N.  443  ,  141  Mich.  392 14 

Three  Rivers  v.  Smith,  99  Mich.  507 95 

Throop  v.  Auditor  General,  9   Mich.   134 407 

Tillotson  v.  Judge,  97  Mich.  585 200,  211,  212,  420 

Tillotson  v.  Webber,  96  Mich.  145 117,  123,  141,  142,  206,  419 

Timm  v.  California  Council,  14  L.  N.  442,  149  Mich.  323 21 

Tinker  v.  Piper,  14  L.  N.  439,  149  Mich.  335 439 

Tinsdale  v.  Auditor  General,  85   Mich.  261 431 

Tinsman  v.  Monroe  Board,  90  Mich.  382 283,  286 

Tinsman  v.  Probate  Judge,  82  Mich.  565 248,  250,  251 

Tinsman  v.  Probate  Judge,  Sup.  Ct.  File  No.  11,565 226,  254 

Tinsman  v.  Probate  Judge,  Sup.  Ct.  File  No.  11,778 262,  278 

Tireman  v.  Drain  Com'r,  40  Mich.  175 265,  295,  427 


<>81  TABLE   OF    CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Tivcy  v.  People,  8  Mich.  128 3 

Tomlin   v.   Newcomb,  70  Mich.  358 /.MS,  414 

Tompkins  v.  Johnson,  75  Mich.  181 .  102.  174,  334 

Toolan  v.  Longyear,  13  L.  N.  134,  144  Mich.  55.  .'07.  383 

Torrent  v.  Yager,  52  Mich.  506 7t 

Tousey  v.  Post,  91  Mich.  631 140.  411 

Townsend  v.  Manistee,  88  Mich.  408 319,  339,  359 

Tower  v.  Somerset  Twp.,  143  Mich.  195 

Tracey  v.  Swarthout,  10  Peters  80 i  J3,  174 

Transportation  Co.  v.  Shea,  19  N.  Y.  408 . .     n 

Travers  v.   Queslee,   19  Mich.  98 411 

Traverse  Beach  Ass'n  v.  Elmwood  Twp.,  12  L.  N.  746,  142  Mich. 

78    92,    iM 

Traverse  Beach  Ass'n  v.  Elmwood  Twp.,  142  Mich.  297 94 

Treat  v.  Bates,  27  Mich.  390 31t 

Treinble  v.  Longworth,  13  Ohio  St.  431 453 

Triangle  Land  Co.  v.  Nessen,  15  L.  N.  1054 439 

Tromble  v.  Hoffman,  130  Mich.  676 380,  381.  391 

Trump  Mfg.  Co.  v.  Buchanan  Village,  116  Mich.  113 110 

Tucker  v.  Drain  Com'r,  50  Mich.  5 300,  414,  412 

Tucker  v.  Ferguson,  22  Wall.  527 34.  57.  1«4 

Tucker  v.  Van  Winkle,  12  L.  N.  658,  142  Mich.  210 401 

Tuller  v.  Detroit,  126  Mich.  605 37« 

Turnbull  v.  Alpena,  74  Mich.  621 116,  123,  155.  409 

Turner  v.  Judge,  95  Mich.  1 48,    88 

Tweed  v.   Metcalf,  4   Mich.   579 

..79,  115,  116,  139,  149,  153,  163,   174.  180,  201.  206,  208,  838 

Twiss  v.  Port  Huron,  63  Mich.  528  320,  321,  341.  360 

Tyson  v.  State,  28  Md.  587 40 

u 

Union  Bank  v.   New  York,  51    Barb.  159 1ST 

Union  Depot  Co.  v.  Commissioner,  118  Mich.  340 2S4 

Union  Depot   Co.  v.  Detroit,  88  Mich.  347 33 

Union  Ins.  Co.  v.  Hoge,  21  How.  35 t!8 

Union  School  v.  Parris,  97  Mich.  593 138 

Union  Trust  Co.  v.  Grant,  14  L.  N.  215,  148  Mich.  501.  154 

Union  Trust  Co.  v.  Mabley,  113  Mich.  478 154 

Union  Trust  Co.  v.  Probate  Judge,  125  Mich.  487 19,  30,  40 

U.  S.  v.  Black,  11  Blatchf.  23 431 

U.  S.  v.  Gilmore,  7  Wall.  491 407 

U.  S.  v.  Gilmore,  8  Wall.  330 118 

U.  S.  v.  Kirkpatrick,  9  Wheat,  720 151 

U.  S.  v.  Macon  Co.,  99  U.  S.  582 118 

U.  S.  v.  Perkins.  163  U.  S.  639 40 

U.  S.  v.  Railway  Co.,  118  U.  S.  125 147 

U.  S.  v.  Robeson,  9  Peters  319 407 

Upjohn  v.  Richland  Twp.,  46  Mich.  541 

Upton  v.  Kennedy,  36  Mich.  215. ..  .104,  114,  138,  179.  «3,  ISO,  138.  14O 


TABLE   OF  .CASES  682 


[REFERENCES  ARE  TO  SECTIONS] 

Van  Akin  v.  Dunn,  117  Mich.  421 283,  291 

Van  Allen  v.  Assessors,  3  Wall.  573 69 

Van  Buskirk  v.  Drain  Com'r,  48  Mich.  258 265 

Van  Der  Brooks  v.  Correon,  48  Mich.  283 420 

Van  Horn  v.   People,  46  Mich.  183 132 

Van   Husan   v.   Heames,   98   Mich.   504 156 

Van  Norman  v.  Judge,  45  Mich.  204   416 

Van  Wyck  v.  Knevals,  106  U.  S.  360 438 

Vaughn  v.  Ellis,  Sup.  Ct.  File  No.  11,038 291 

Veris  v.  Thomas,  12  111.  442 185 

Vettrely  v.   McNeal,   129   Mich.   507 83,397 

Vier  v.  Detroit,  111  Mich.  646 215 

Vischher  v.  Auditor  General,  116  Mich.  663 384 

Voigt    v.    Detroit,    123    Mich.    547 321,334,338,344,353,373 

Vossen  v.  St.  Clair,  14  L.  N.  331 ,  148  Mich.  686 4 

Vreeland  v.   Monnier,   127   Mich.   304 189 

w 

Wabash  R.  Co.  v.  Defiance,  167  U.  S.  100 5.7 

Wabo  Lt.  Co.  v.  Davis,  12  L.  N.  440,  141  Mich.  187 389 

Wager  v.  Bowerly,  104  Mich.  39 137,  142,  437,  442 

Wager  v.    Bowerly,    109    Mich.    388 142 

Wait  v.  Gardener,  123  Mich.  236 192 

Wait  v.   McMillan,   121   Mich.  95 389 

Walcott  v.   People,  17  Mich.  68 30,  31,  89,  224 

Waldby  v.  Callender,  8  Mich.  430 205,  214 

Waldron  v.  Auditor  General,  109  Mich.  231 227,  381,  382,  384 

Waldron  v.   Lee,  5   Pick.   328 287,  417 

Walker  v.  Ann  Arbor,  118  Mich.  251 322,  376 

Walker  v.  Detroit,  136  Mich.  6 344,  351,  370,  374,  433 

Walker  v.  Detroit,  138  Mich.  538 48,  144 

Walker  v.  Detroit,  138  Mich.  639 354,  356,  438 

Walker  v.  Detroit,  11  L.  N.  709,  138  Mich.  538 353,  356,  371,  438 

Walker  v.  Detroit,  13  L.  N.  74,  143  Mich.  427 327 

Walker  v.  Cincinnati,  21  Ohio  St.  14 11 

Wall  v.  Trumbull,   16  Mich.  230 48,  10S 

Wallace  v.  Shelton,  14  La.  Ann.  498 354 

Wallace  v.  Shelton,  52  Mich.  159   358,  385 

Walling  v.  Michigan,  116  U.  S.  454 16 

Walsh  v.  King,  74  Mich.  350 92,  432 

Walters  v.   Chamberlain,  65  Mich.  333 414 

Waubaunsee  Co.  v.  Walters,  8  Kan.  131 158 

Ward  v.  Echo  Twp.,  13  L.  N.,  398,  145  Mich.  56 51,    92 

Ward  v.  Maryland,  12  Wall.  418 17 

Ward  v.  Nestell,  113  Mich.  185 191,  225 

Warner  v.  Lawrence  Village,  62  Mich.  251 21,    23 

Warren  v.   Auditor  General,   131   Mich.  263 171,  453 

Warren  v.  Grand  Haven,  30  Mich.  24 

326,  333,  343,  344,  350,  353,  356,  370,  373,  376 


683  TABLE   OF    CASES 

[REFERENCES  ARE  TO  SECTIONS] 

Warren  v.  Paul,  22  Ind.  228 41 

Washington,  etc.,  Trust  Co.  v.  McKenzie,  64  Minn.  273 1-4 

Water  Com'rs  v.  Auditor  General,  115  Mich.  546 is 

Watkins  v.  Green,  101  Mich.  493 . .     52 

Watkins  v.  Macon  Co.  Court,  68  Mo.  29 .lift 

Watkins  v.  U.  S.,  9  Wall.  765 . .  407 

Wattles  v.  Lapeer,  40  Mich.  624 3,  100,  141,  459 

Watts  v.  Bublitz,  99  Mich.  586  382,  384,  388,  301,  305 

Wayne  Co.  Savings  Bank  v.  Roscommon  Twp.,  97  Mich.  630. 

Wayne  Co.  Savings  Bank  v.  School  Dist.,  15  L.  N.  251 369 

Wayne  Village  v.  Goldsmith,  12  L.  N.  516,  141  Mich.  528 409 

Webber  v.  Virginia,  103  U.  S.  344 88 

Webster  v.  Auditor  General,   121   Mich.  668 179 

Webster  v.  Monroe,  84  Mich.  341 W 

Webster   v.    Wheeler,    119    Mich.    601 171,414 

Weeks   v.   Ellis,  2   Barb.  325 44 

Weeks  v.  Milwaukee,  10  Wis.  258 4,  92,  432 

Weimer  v.   Bunberg,  30   Mich.  201 l 

Weimer  v.  Porter,  42  Mich.  569 162,  200,  211,  410,  458 

Weier  v.  Kitchens,  52  Miss  74 174 

Welch  v.  Cork,  97  U.  S.  541 

Welever  v.  Auditor  General,  12  L.  N.  1005,  143  Mich.  311 15« 

Weller  v.  Wheelock,  15  L.  N.  856 403 

Wells  v.  Dill,  1  Mart.  La.  592 152 

Wells  v.   Torrey,   144   Mich.   689 10 

Wells  v.  Weston,  22  Mo.  384 4 

Welton  v.  Missouri,  91  U.  S.  275 17 

West  Brook  v.  Miller,  56  Mich.  148 202,  218 

West  Brook  v.  Miller,  64  Mich.  129 100,  109,  149,  207,  23« 

West.  Mich.  Lumber  Co.  v.  Dean,  73  Mich.  459  47,  140,  143,  411 

West  Wisconsin  R.  Co.  v.  Sup'rs.  93  U.  S.  595 34 

Westinghauser  v.  People,  44  Mich.  269 20,221 

Weston  v.   Charleston,  9   Wheat.  733 : 

Weston  v.  Luce  Co.,  102  Mich.  523 157,  159,  160.  179 

Weston  v.  Monroe,  84  Mich.  341 107,  109,  231,  136 

W.  F.  Stewart  Co.  v.  Flint,  14  L.  N.  55,  147  Mich.  697 

S41,  359,  360.  376 

Wheat  v.  Tine,  14  L.  N.  430.  149  Mich.  314 232,  370,  374 

Wheatley  v.  Baugh.  25  Pa.  St.  528 815 

Whisler  v.  Drain   Com'r,   40  Mich.  591 260,295 

Whitbeck  v.  Huson  Village,  50  Mich.  86.316,  319,  340,  344.  361.  362.  411 

White   v.    Bracelin,    144    Mich.   332 11 

White  v.   Fast   Saginaw.  43   Mich.  567 151 

White  v.  Gibson,  13  L.   N.  872.   146  Mich.  547 189 

White  v.  Millbrook  Twp.,  60  Mich.  532 M,  160.  409 

White  v.  Saginaw,  67  Mich.  33 321,  334,  849.  356.  359.  370,  871 

White  v.  Shaw.  14  L.  N.  700,  150  Mich.  270 403 

Whiteford  Twp.  v.  Probate  Judge.  53  Mich.  130 

288,  248,  151.  MS.  •».'. 

Whitely  v.  tansing.  27  Mich.   131 359.  868 

Whitaker   v.    Fuller,   96   Mich.    145 411 

Whitmore  v.  Probate  Judge,  14  L.  N.  380,  149  Mich.  192 803 


TABLE  OF   CASES  684 

[REFERENCES  'ARE  TO  SECTIONS] 

Whitney  v.  Gd.  Rapids  Twp.  Bd.,  71  Mich.  234 21 

Whitney  v.  Hudson  Village,  69  Mich.  189... 316,  319,  340,  344,  361,  362 

Whitney  v.  Port  Huron,  88  Mich.  268 157,  159,  410 

Wilcox  v.  Eagle  Twp.,  81  Mich.  271 130 

Wilcox  v.   Paddock,  65  Mich.  23 6 

Wiley,  In  Re,  89  Mich.  58 380,  383,  385.  387,  391,  419 

Wiley  v.    Beach,   86   Mich.   381 416 

Wilkin  v.  Keith,  121  Mich.  66 84,  193,  196,  382,  384,  391,  397,  453 

Wilkins   v.    Detroit,   46   Mich.    120 ". 325,337,340 

Wilkinson  v.  Auditor  General,  13  L.  N.  945;  147  Mich.  13 217,  414 

Willcheck  v.   Drain   Com'r,  42  Mich.   105 226,  265,  271 

Williams  v.  Detroit,  2  Mich.  560 3,  4,  12,  316,  317,  320,  321, 

324,  325,  339,  341,  348,  351,  352,  373,  375,  414,  448 

Williams  v.  Fox,  15  L.  N.  91,  152  Mich.  215 185 

Williams  v.  Mears,  61  Mich.  86 96,  107,  142,  234,  241 

Williams  v.  Merritt,  15  L.  N.  204,  152  Mich.  621 160 

Williams  v.  Olson,  12  L.  N.  560,  141  Mich.  580 403,  404 

Williams  v.  Railway  Co.,  29j  N.  J.  Eq.  311 164 

Williams  v.   Saginaw,  51  Mich.  120 74,  94,  96,  116 

Williams   v.    Towell,    65    Mich.   204 190 

Williamson  v.  New  Jersey,  130  U.  S.  189 2 

Wilson  v.  Edmunds,  24  N.   H.  517 154 

Wilson  v.   Woolman,   133   Mich.  350 220 

Winona  Land  Co.  v.  Menominee,  159  U.  S.  537 383 

Winters  v.  Cook,  12  L.  N.  224 ,  140  Mich.  483 403,  404 

Wisner  v.   Davenport,  5  Mich.  501 117,  149,  383 

Wisner  v.    Hubbard,    15   Mich.    146 86 

Wixom  v.   Bixby,   127   Mich.   479 274 

Wolcot  v.   People,  17  Mich.  91 57 

Wolcott  v.   Superior  Judge,   112   Mich.   311 24 

Wolf   v.    Chalkers,   31   Conn.   121 132 

Wolf  v.  Lansing,  53  Mich.  367 18,  20 

Wolpert  v.  Newcome,  106  Mich.  357 260,  264,  426,  429 

Wolverine  Land  Co.  v.  Auditor  General,  133  Mich.  666 212 

Wolverine  Land  Co.  v.  Davis,  12  L.  N.  440,  141  Mich.  187 389 

Wood  v.  Bigelow,  115  Mich.  123 189,  217,  218,  261,  156 

Wood   v.   Norwood  Twp.,   52   Mich.  32 225 

Wood  v.  Thomas,  38  Mich.  686 153,  175 

Woodbridge  v.  Detroit,  8  Mich.  274 ." 12,  316,  349,  352 

Woodman  v.  Auditor  General,  52  Mich.  28 48,  89,  95,  98 

Woodmere,  etc.,  Ass'n  v.  Springwells  Twp.,  130  Mich.  466 158 

Woodruff  v.  Perham,  8  Wall.  123 17 

Woodside   v.    Wagg,   71   Me.   207 45 

Worcester  v.  Georgia,  6  Peters  582 53 

Worcester  Co.  v.  Worcester,  116  Mass.  193 58,  346 

Wref ord  v.  Detroit,  132  Mich.  348 325 

Wright  v.  Auditor  General,  118  Mich.   556 98 

Wright  v.  Dean,  3  Mich.  414  209 

Wright  v.  Dunham,  13  Mich.  414 135,  290,  137,  238 

Wright  v.  Rowley,  44  Mich.  557 226,  256,  266,  277,  425,  428 

Wyman   v.    Baer,   46   Mich.   418 184,199 

Wynkoop  v.  Circuit  Judge,  113  Mich.  381 


685  TABLE   OF    CASES 

Y 

[REFERENCES  ARE  TO  SECTIONS] 

Yarnold  v.  Lawrence,  15  Kas.  126. 


Yelverton  v.  Steele,  38  Mich.  82 101,  108,  SSI 

Young  v.  Martin,  2  Yeates  312 :  • 

Youngblood  v.  Sexton,  32  Mich.  408 1,  8.  12,  15.  442 

Youngs  v.  Auditor  General,  118  Mich.  550 156.397 

Youngs  v.  Clark.  120  Mich.  528 .189 

Youngs  v.  Peters,  118  Mich.  45 ,198.  891,  394 

Youngs  v.   Povey,   127   Mich.   297 192,  193.  S84 

z 

Zabel  v.  Harshman,  68  Mich.  270  and  273 242,  244,  442,  444,  457 

Zink  v.  Monroe  Board,  68  Mich.  283 S86 


INDEX 


[REFERENCES  TO  SECTIONS] 
ABANDONED  LANDS, 

statutes  of  limitation  in  rt  homestead  lands,  216. 
what  are,  53. 

ABBREVIATIONS, 
use  of,  82. 

ABSTRACTS,  ETC, 
not  assessable,  70. 

ACCOUNTING, 

allowance  of  claims  by  legislature,  220. 

collector  and  municipality,  166. 

county  treasurer,  168. 

state  taxes,  172. 

statute  of  limitations  does  not  run  against  state  taxes,  217. 

state  and  county,  171. 

townships  and  county,  170. 

townships,  169. 

ACERAGE, 

necessity  of  setting  forth. 

ACTIONS, 

actions  against  collector,  408. 

actions  against  state,  407. 

actions  at  law  in  re  special  assessments,  405. 

action  for  tax,  405. 

amendments,  449. 

assumpsit  against  municipality,  409. 

averments,  448. 

auditor  general  as  defendant,  446. 

bill  of  review,  451. 

bill  to  quiet  title,  383,  422. 

bill  to  quiet  title  in  re  drain  tax,  424. 

certiorari.  422. 

certiorari  i'n  re  drains,  the  injury,  426. 

certiorari  and  collateral  actions,  427. 

certiorari,  errors  not  cured  by  return,  428. 


INDEX  68& 


[REFERENCES  TO  SECTIONS] 
ACTIONS  (Continued), 

certiorari,  explanations  in  return,  429. 

certiorari  and  collateral  attack,  454. 

certiorari  to  special  assessment  not  common,  423. 

claim  for  improvements,  421. 

cloud  on  title,  what  constitutes,  437. 

cloud  on  title,  bill  to  remove,  439. 

collateral  attack  in  re  drain  tax,  454. 

collateral  attack  of  special  assessment,  455. 

complainants,  parties  necessary,  442. 

county  treasurer  against  township  treasurer,  166. 

decree,  opening,  451. 

defendants,  parties  as,  445. 

ejectment,  419. 

ejectment,  recovery  for  improvements,  420. 

equity  jurisprudence,  amount,  433. 

equity  jurisprudence,  in  re  drain  tax,  440. 

equity  jurisdiction  in  re  special  assessment,  431. 

form  of  action,  405. 

improvements,  claim  for,  437. 

injunction  to  restrain  collection  of  tax,  436. 

injunction  to  restrain  expenditures,  435. 

injunction  to  restrain  waste,  434. 

injunction  to  restrain  sale  of  land,  437. 

injunction,  legislative  regulation  of,  432. 

laches  in  filing  petition,  399. 

lien  for  taxes  paid,  enforcement  of,  143. 

mandamus  to  pay  money,  414. 

mandamus  as  to  other  duties,  415. 

mandamus  to  spread  drain  tax,  441. 

mandamus  in  re  special  tax,  418. 

mandamus  to  review  action  of  court,  416. 

parties  defendant,  445,  446. 

parties  complainant,  442. 

petition  to  set  aside  sale,  398,  399. 

petition  to  auditor  general  to  cancel  deed,  397. 

petition  for  writ  of  assistance,  401. 

presenting  claim  to  council,  410. 

quieting  title,  437. 

quieting  title  in  re  drain  tax,  424. 

replevin,  411. 

res  judicata,  456. 

right  to  bring,  presumed,  68. 

sale,  setting  aside  by  court,  398,  399. 

sale,  setting  aside  by  auditor  general,  397. 

supervisor  to  bring,  for  tax,  405. 

trespass,  413. 

trover,  411. 

ADVALOREM  TAX, 
nature  of,  29. 


689  INDEX 


[REFERENCES  TO  SECTIONS! 
ADJOURNMENT, 

board  of  supervisors,  103. 

board  of  state  tax  commissioners.  87. 

court,  before  entering  decree,  389. 

records  of,  117. 

sale  of  lands  for  tax,  177,  180. 

special  drain  commissioners,  271. 

ADMINISTRATOR. 

assessment  of,  75,  78. 
liability  of  inheritance  tax,  40. 
statute  in  re  administrators,  etc.,  63n. 

ADVERSE  POSSESION, 

based  upon  tax  deeds,  213. 
state  homestead  lands,  216. 

ADVERTISEMENT,  see  PUBLICATION. 

AFFIDAVIT, 

publication,  385. 

service  of  papers  on  drains,  265. 

writ  of  certiorari  on  drain,  426. 

AGENT, 

assessment  of  personal  property  to,  63,  76. 
collecting  officer  as,  in  re  liquor  tax,  20. 
county   drain   commissioner   as.   of   townships, 
county  treasurer  as,  for  state,  173. 
inheritance  tax  on  personal,  charge  against,  40. 
liability  of,  for  tax,  154. 
special  drain  commissioner  as,  243. 
supervisor  as,  of  his  township,  287. 

ALDERMEN, 

delegating  power  to  assessors,  333. 

liability  for  neglecting  bond  I'M  re  improvements,  368. 

method  of  levy  prescribed  by.  316. 

qualification  of,  372. 

record  of  vote,  319. 

review  of  special  assessment  roll  by,  355. 

AMENDMENTS, 

bill   to  set  aside   special  assessments,  450. 

court  to  allow,  when,  449. 

drain  statutes,  298. 

drain  records,  251. 
(44) 


INDEX  690 


[REFERENCES  TO  SECTIONS] 
AMENDMENTS  (Continued), 
first  order,  on  drain,  257. 
objections  to  validity  of  tax,  369. 
pleadings,  in  re  drains,  414. 
records  of  general  tax,  236. 

APPEAL,  see  REVIEW. 

APPLICATION, 

appointment  of  special  drain  commissioner,  243. 

deepening,  widening  drain,  253. 

description  of  land,  in  re  probate  court,  263. 

description,  in  drain  petition,  249. 

recitals  in  drain  petition,  251. 

special  commissioners,  in  re  drain,  262. 

surplusage  in  drain  petition,  252. 

APPOINTMENT, 

jury,  on  drains,  273. 

special  commissioners  on  drains,   267. 

special  drain  commissioner,  243. 

township  treasurer,  not  collaterally  attacked,  44. 

APPORTIONMENT, 

affect  on  township  tax,  108. 

appeal  from  benefits  on  drains,  285. 

area  basis,  354. 

benefits,  on  drains,  283. 

benefits,  in  re  special  assessments,  353. 

certificate  of,   109. 

certificate  of  special  assessments,  356. 

confirmation  of,  357. 

description,  in  benefits  on  drains,  284. 

district,  special  assessment,  344. 

equity  will  not,  review,  440. 

frontage  basis,  352. 

notice  of,  special  assessments,  339. 

record  of,  general  taxes,  107. 

review  of,  special  assessments,  355. 

state  and  county  taxes,  106. 

vacating,  in  re  special  assessments,  358. 

APPROPRIATION  OF  MONEY, 
purpose  of,  general  tax,  3. 
purpose  named  in  special  assessments,  317. 
record  of,  for  general  tax,  116. 
vote  for,  general  tax,  115. 
vote  for,  special  assessments,  319. 


€91  INDEX 

[REFERENCES  TO  SECTIONS] 
AREA, 

assessing  benefits  according  to,  354. 
description  for  general  taxation,  81. 

ASSESSING  OFFICER, 
duties  of,  48. 
signature  of,  236. 

ASSESSMENT, 

appeal   from,  on  drains,  285. 

area,  assessment  by,  354. 

banks,  67. 

banks,  national,  69. 

banks,  collection  of  tax  from,  68. 

banks,  saving,  66. 

benefits,  drains,  283. 

benefits,  special  assessments,  353. 

board  of  review,  functions  of,  94. 

boats,  62. 

certificate  of  special  assessment,  356. 

choses  in  action,  63. 

collateral  attack,  special  assessment,  455. 

confirmation  of  special  assessment,  359. 

corporate  realty,  55. 

debts  deducted   from  personal  assessment,  71. 

description  in  drain  assessment,  284. 

description  in  re  special  assessments,  344. 

equity  will  not  review  drain,  440. 

equity  will  not  review  special,  431. 

exemptions  from  general,  57. 

exemptions,  church  and  educational  property,  59. 

exemptions,  church  property  from  special,  345. 

exemptions,  copyrights,  etc.,  70. 

exemptions,  public  property,  general,   58. 

exemptions,  public  property  from  special,  346. 

frontage,  special  assessment,  352. 

homestead  lands,  53. 

insurance  companies,  36. 

limitations  of  special  assessments,  330. 

mortgages,  64. 

notice  of  assessment,  drains,  282. 

notice  of  special   assessment,   339. 

parks,  in  re,  illegal,  329. 

personal  property,  61. 

purpose  of  special,  317. 

railroad  companies,  general  tax.  32. 

railroad  property,  special  assessment  on,  347. 

real  estate,  to  whom  assessed,  52. 

reassessment  of  special,  359. 

rejected  taxes,  105. 


INDEX  692 


[REFERENCES  TO  SECTIONS] 
ASSESSMENT  (Continued), 
review  of  special,  355. 
special  assessments,  power  to  levy,  316. 
stock  in  corporations,  65. 
street  railways,  35. 

telegraph  and   telephone  companies,   37. 
tenants  in  common,  56. 
vacating,  special,  358. 
vessels,  62. 

ASSESSORS, 

board  of,  for  special  assessments,  333. 
certificate  of  such  board,  356. 
collateral  attack  of  acts  of  such  board,  455. 
delegated  authority  of  such  board,  333. 
general  tax,  see  "SUPERVISOR." 

ATTORNEY  FEES, 

drain  funds  not  chargeable  with,  285. 

townships  not  liable  for,  to  defend  collector,  293. 

AUDITOR  GENERAL, 

cancellation  of  sale  by,  397. 
certificate  of  error,  397. 
debts  due  state  collected  by,  110. 
deed,  execution  of,  202. 
defendant  in  suits  in  re  taxes,  446. 
delinquent  taxes  returned  to,  177. 
homestead  land,  duty  in  re,  53. 
newspapers,  designation  of,  365. 
petition  for  sale  of  tax  lands,  179. 
political  boundaries  noticed  by,  110. 

AUTHORITY, 

delegated,  in  re  special  assessments,  373. 
ratified,  374. 

BANKS, 

assessment  of,  67. 
assessment  of  national  banks,  69. 
assessment  of  savings  banks,  66. 
collection  of  tax  on,  68. 

BENEFITS, 

according  to  area,  354. 

according  to  benefits,  353. 

appeal  from  drain  assessment,  284. 


693  INDEX 

[REFERENCES  TO  SECTIONS] 
BENEFITS  (Continued), 
certificate  of,  356. 

collateral  attack  of  assessment  for.  455. 
confirmation  of  assessment  for,  357. 
determination  of  special  assessing  district,  344. 
drain  assessment  of,  282. 
frontage  assessment,  352. 
notice  of  assessment  of,  on  drains,  359. 
review  of  special  assessment,  355. 

BIDS, 

lowest,  361. 
notice  for,  330. 
public  works,  360. 
publication  of  notice  for,  331. 
requirement  as  to,  on  drains,  358. 
state  tax  land,  199. 

BOARD  OF  ASSESSORS,  see  ASSESSORS. 

BOARD  OF  ESTIMATES, 
functions  of,  332. 

BOARD  OF  HEALTH, 

jurisdiction  does  not  include  drainage,  248. 

BOARD  OF  PUBLIC  WORKS, 

extras  cannot  be  allowed  by,  363. 
functions  of,  in  re  contracts,  362. 

BOARD  OF  REVIEW. 

action  of,  on  drains,  285. 

appeal  to,  by  tax  payer,  92. 

certificate  of,  100. 

collateral   attack  of  certificate,  102. 

estopple  for  not  appearing  before,  94. 

notice  of  action  of,  95. 

omission  of  property  from  roll  by,  92. 

powers  of,  99. 

review  of  action  of,  96. 

review  by  state  tax  commissioner,  97. 

signatures  of,  on  roll,  101. 

special  assessments,  355. 

time  of  meeting,  98. 

BOARD  OF  SUPERVISORS, 
see  "SUPERVISORS." 
agricultural  society  tax,  134. 


INDEX  694 


[REFERENCES  TO  SECTIONS] 
BOARD  OF  SUPERVISORS  (Continued), 
apportionment,  state  taxes,  110. 
certificate  of,  109. 
certifying  taxes  to,  103. 
drain  tax,  action  on,  286. 
equalization  by  counties,  106. 
equalization,  as  affecting  townships,  108. 
functions  of  board,  104. 
highway  tax,  action  on,  126. 
mandamus,  to  spread  drain  tax,  417. 
mistake  in  assessing  drain  tax,  283. 
record  of  equalization,  107. 
record,  in  re  rejected  taxes,  105. 
reviewing  action  of,  112. 
state  and  county  tax,  110. 

BOATS, 

assessment  of,  62. 

license  for,  as  ferries,  22. 

BONDS, 

alderman's  liability,  for  neglecting  to  take,  368. 

compelling  payment  of,  118. 

collector,  152. 

municipal  liability,  in  re  improvements,  369. 

qualification  of  public  officers,  242. 

qualification  of  voters  for,  319. 

special  drain  commissioner,  243. 

sureties  on,  152. 

BONUSES, 

factories,  invalid,  10. 
railroad  companies,  invalid,  9. 

BOUNTY  TAX, 

raising  of,  135. 

BRIDGES  AND  CULVERTS, 
drains,  399. 
tax  for,  125,  126. 
railroad  companies,  259. 

CANCELLATION, 

sale,  by  auditor  general,  397. 
sale,  by  court,  398. 

CASH  VALUE, 

certificate  of,  100. 


695  INDEX 

[REFERENCES  TO  SECTIONS] 
CERTIFICATE, 

board  of  review,  100. 

board  of  supervisors,  on  roll,  139. 

clerks,  to  board  of  supervisors,  104.  138. 

collateral  attack  of,  102. 

county  clerk,  on  return  of  taxes,  178. 

equalization,  109. 

error,  397. 

payment  effected  by,  158. 

sale,  197. 

special  assessment,  356. 

CERTIORARI, 

allegations  of  injury,  on  drains,  426. 

collateral  action  with,  428. 

errors  not  cured  by  return  in,  429. 

explanations  in  return,  454. 

review  of  general  tax  not  favored  by,  422. 

review  of  special  assessments   not   favored  by,  413. 

review  of  drain  tax  favored  by,  425. 

time  of  bringing,  to  review  drain  tax,  425. 

CHANGE  OF  DRAIN, 

diverting  •watercourse,  313. 
generally,  255. 

CHANGE  OF  ROLL, 

supervisor,  affected  by,  50. 

CHARGES, 

attorney,  on  drains,  288. 

collector,  166. 

institute,  27. 

liability  of  petitioners,  on  drains,  260. 

license,  15. 

officers,  in  tax  proceedings,  363,  374. 

CHARITABLE  INSTITUTIONS, 

exemptions  from  general  tax,  59. 
exemptions  from  special  assessments,  345. 

CHOSES  IN  ACTION, 

assessment  of,  53. 
exemptions  of,  71. 
inheritance  tax  on,  40. 
mortgages  and  land  contracts,  84. 


INDEX  696 


[REFERENCES  TO  SECTIONS] 
CHURCH  PROPERTY, 

exemptions  from  general  taxation,  59. 
exemption  from  special  assessments,  345. 

CIRCUIT  COURT  COMMISSIONERS, 
title  not  determined  by,  214. 

CIRCUIT  COURTS  IN  CHANCERY, 

amendments  to  proceedings  in,  449. 

amount  involved,  433. 

auditor  general,  as  defendant.  446. 

averments  in  bill,  443. 

bill  of  review,  400. 

bill  to  quiet  title  in  re  drain  tax,  424,  440. 

cloud  on  title,  438. 

injunction  to  restrain  drain  tax,  440. 

injunction  regulated  by  legislature,  432. 

injunction  to  restrain  expenditures,  435. 

injunction  to  restrain  special  assessment,  431. 

injunction  to  restrain  waste,  434. 

jurisdiction  of,  488,  490. 

mandamus  to  review  action  of,  434. 

opening  decree,  451. 

parties,  complainant,  442. 

parties,  complainant,  on  drains,  443. 

parties,  complainant,  special  assessments,  444. 

parties,  defendant,  445. 

parties,  defendant,  on  drains,  447. 

res  judicata,  456. 

reviewing  assessment  of  taxes,  68. 

sale,  restraining,  437. 

sale,  setting  aside,  398. 

CITATION, 

drains,  notice  of,  265. 

CITY, 

aldermen,  qualification  of,  372. 

amount  of  special  assessment  paid  by,  334. 

bonds  for  improvement,  369. 

contract  partly  performed,  not  liable  on,  365. 

council  prescribes  method  of  assessment,  316. 

drains  within,  244. 

engineer,  powers  of,  364. 

liability  in  re  improvements,  368. 

record  of  vote  of,  319. 

suit  for  taxes  by,  405. 


INDEX 

[REFERENCES  TO  SECTIONS) 
COLLATERAL  ATTACK, 
actions,  on  drains,  427. 
certificate  of  board  of  review,  102. 
decree,  453.' 
drain  tax,  76. 

municipal  organization,  43. 
special  assessment,  455. 
tax  records,  234. 

COLLECTION,  see  LEW  and  FEES. 

fees,  166,  363,  374. 

liquor  tax,  20. 

tax  on  bank  stock,  68. 

tax  on  railroad  companies,  164. 

See  Levy  and  Fees. 

COMMISSIONERS, 

adjournment  of  special,  270. 
appointment  of  special  county  drain,  243. 
appointment  of  special,  on  drains,  267. 
circuit  court,  cannot  pass  on  title,  214. 
disagreement  of  special,  272. 
jurisdiction  of  drain,  245-249. 
liability  of  drain,  for  outlet,  310. 
oath  of  special,  269. 
order  appointing  special,  268. 
qualification  of 'drain,  242. 
return  of  special,  271. 
state  tax,  111-113. 

COMPLAINANTS, 

drain  proceedings,  443. 
general  tax  proceedings,  446. 
special  assessments,  444. 

CONFIRMATION, 

•  acts  of  others,  374. 
jury's  report  on  drain,  274. 
special  assessment '  roll,  357. 

CONSTITUTION, 

Art.  IV,  810,  specific  taxes.  30. 

Art.  IV,  547.  15,  17. 

Art.  XIV,  §9.  forbidding  tax  for  internal !  improvements.  6. 

Art.  XIV,  §511,  13.  uniformity  of  tax.  cash  vtloe,  316. 

Art.  XIV.  512,  cash  values.  316. 

Art.  XIV,  514,  title  of 'acts,  2S4. 


INDEX  698 

[REFERENCES  TO  SECTIONS] 
CONSTITUTION   (Continued), 
drain  laws,  various,  302. 
powers  of  drain  commissioner,  301. 
statues  changing  taxing  districts,  1. 
tax  laws,  various,  214. 

CONSTRUCTION, 

drains,  construction  of,  288. 
statutes,  construction  of,  297. 

CONTRACTS, 

execution  of,   for  public  improveement,  362. 

exempting  from  tax,  57. 

exempting  from  special  assessment,  347. 

extras  cannot  be  allowed  by,  363. ' 

land,  assessment  of,  63. 

nonperformance  of,  in  re  improvement,  365. 

ratification  of,  374. 

statute  exempting  railroad  company  is  not,  34. 

statute  governing  municipality  is  not,  2. 

COST, 

advertising  lands,  367. 

attorney  fees  and  court  costs,  285. 

clerk  and  sheriff  fees,  374. 

collectors,  166. 

drain,  285. 

interest,  294. 

petitioner's  liability  on  drain,  294. 

special  improvement,  343. 

COUNCIL, 

delegating  power  to  assessors,  333. 
method  of  assessment  determined  by,  316. 
personal  liability  for  neglecting  bond,  368. 
qualification  of  members  of,  372. 
record  of  vote  of,  319. 
•review  of  special  assessment  roll  by,  355. 

CORPORATIONS, 

assessment  of  property  of,  55, 

banks,  67. 

banks,  savings,  66. 

banks,  national,  69. 

charitable  institutions,  58. 

charitable  institutions   and   special   improvements,   345. 

educational  institutions,  59. 

insurance  companies,  36. 


699  INDEX 

[REFERENCES  TO  SECTIONS] 
CORPORATIONS  (Continued), 
personal  property  of,  62. 
railroad  companies,  32. 
residence  of,  n. 
stock  of,  65. 

street  railway  companies,  35. 
telephone  and  telegraph  companies,  37. 

COUNTY, 

accounting,  state  and  county,  171. 

accounting,  township  and  county,  170. 

apportionment  of  state  and  county  taxes.  ITS. 

claims  allowed  by  legislature,  220. 

county  tax,  determination  of,  138. 

return  of  taxes  to,  174. 

statute  of  limitations  does  not  run  against,  217. 

COUNTY  CLERK, 

certificate  to    township  taxes,  104,  13S. 

certificate  of  equalization,  109. 

certificate  on  roll,  139. 

certificate  on  return  of  taxes,  176. 

receives  redemption  money  for  tax  purchaser,  200. 

signature  to  proceedings  of  board,  236. 

COUNTY  DRAIN  COMMISSIONER, 
appointment  of  special,  243. 
de  novo  proceedings,  278. 
delay  in  proceedings,  277. 
determination,  collusiveness  of,  254,  257,  158. 
ex  parte  proceedings,  260. 
jurisdiction,  territorial,  244. 

jurisdiction  over  county  and  township  drains,  S45. 
jurisdiction  for  benefit  of  public  health,  246. 
liability  of,  for  outlet.  309. 
petitioners  liable  to,  294. 
qualification  of,  242. 

• 

COUNTY  TREASURER, 

accounts  with  townships,  1601 

accounts  with  state,  171,  172. 

actions  by,  166. 

certificate  of,  211. 

certificate  of  county  clerk,  176. 

certificate  of,  as  payment  of  tax,  156,  897. 

collects  liquor  tax,  20. 

duties  of,  173. 

payment  of  taxes  to,  179. 

return  of  delinquent  taxes  to,  174. 


INDEX  700 


[REFERENCES  TO  SECTIONS] 
COUNTY  TREASURER  (Continued), 
returns  tax  to  auditor  general,  177. 
sale  of  delinquent  tax  lands  by,  183. 
warrant  to  township  treasurer,  175. 

COURT, 

federal  government  cannot  tax  court  proceedings,  41. 
fraud  only  ground  for  reviewing  apportionment,  96,  284,  286. 
probate  court  not  restrained,  262. 
see  circuit  court  in  chancery. 

CUMULATIVE  TAX  TITLES, 
force  of,  201. 

DAMAGES, 

delaying  sale,  after  levy,  165. 
improper  outlet  for  drain,  309. 
neglecting  to  take  bond  for  labor,  etc.,  368. 
stipulated,  in  contract,  368. 

DATES, 

clerical  mistake  in,  125. 

DE  FACTO  OFFICERS, 

acts  of  collector  legal,  151. 
definition  of,  284. 
intruders,  283. 
validity  of  act  of,  282. 

DE  NOVO  PROCEEDINGS, 
right  to,  on  drains,  278. 

DEBTS, 

deduction  from  choses  in  action,  63,  71. 

DECREE, 

appeal  from,  393. 

collateral  attack  upon,  453. 

effect  of,  390. 

entry  of,  389. 

evidence  of,  392. 

particulars  of,  391. 

power  of  court  to  open,  451. 

setting  aside  on  petition,  398,  399. 

setting  aside,  effect  of,  178. 


INDEX 

[REFERENCES  TO  SECTIONS] 
DEEDS, 

attack  on,  who  may  make,  210. 

auditor  general  to  land  coramiwioner,  43. 

cancellation  of,  auditor  general,  397. 

collusiveness  of,  214. 

descriptions  in,  204. 

effect  of,  under  old  laws,  80S. 

execution  of,  202. 

improvements,  compensation  for,  213. 

lien  by  void  tax  title  holder,  211. 

limitation  as  to  attacking,  215. 

limitation  as  to  homestead  lands,  216. 

operation  of,  206. 

presumptions  from,  209. 

recitals  in,  203. 

reimbursement  of  defeated  purchaser,  2lf. 

setting  aside,  by  court,  398,  399. 

validity  of,  205. 

DEEPENING  AND  WIDENING, 

action  on  one  drain  petition,  248. 
petition   for,  on  drains,  253. 

DEFENDANTS, 

auditor  general,  446. 
defendants  in  general,  445. 
drain  proceedings,  447. 

DELAY  IN  PROCEEDINGS, 

de  novo  proceedings,  278. 

drain  proceedings,  277. 

returning  tax  to  auditor  genera],  177. 

suing  out  writ,  425. 

DELEGATED  AUTHORITY. 

council  to  board  of  assessors,  333. 
generally,  373. 
legislature  to  council,  316. 

DELINQUENT  TAXES, 

certificate  of  county  clerk  in  re,  176. 

conclusivencss  of  decree,  as  to  amount  of,  390. 

decree  in  re  setting  aside,  178. 

lien  for,  143. 

lien  for  delinquent  drain  taxes,  145. 

payment  of.  by  owner,  179. 

redemption  period,  198. 


INDEX  702 

[REFERENCES  TO  SECTIONS] 
DELINQUENT  TAXES  (Continued), 

redemption,  less  than  amount  due,  199. 
return*  to  auditor  general,  177. 
return  to  county  treasurer,  174. 
return  of  highway  labor  tax,   124. 
sales  of,  see  SALES. 

DEMAND  FOR  TAX. 
necessity  of,  161. 

DEPUTY  OFFICERS, 
appointment  of,  47. 
tax  sales  by,  183. 

DECRIPTION  OF  LANDS, 

abbreviations  in,  82. 

application  to  probate  court  on  drain,  263. 

assessment,  on  drain,  283. 

contiguous  parcels,  85. 

decree,  391. 

deeds,  204. 

drain,  line  of,  in  petition,  249. 

estopple  in  re,  86. 

notice  of  purchase,  402. 

order  appointing  special  commissioners  on  drains,  268. 

personal  property,  87. 

platted  lands,  84. 

real  property,  81. 

return  of  special  commissioners  on  drains,  271. 

section  lands  83. 

special  •  assessment  district,  322,  344. 

tax  statements,  88. 

DETERMINATION, 

final  order,  on  drain,  279. 

first  order  on  drains,  requisites  of,  258. 

first  order  identifies  drain,  262. 

necessity  of  public  improvement,  321. 

notice  of,  338. 

particulars  of,  322. 

special  assessment  district,  344. 

DIRECTING  STATUTES, 

filing  drain  records  with  board  of  supervisors,  286,  296. 
first  order  on  drain  within  ninety  days,  256,  257. 

DISAGREEMENT, 

jury,  on  drain,  275. 

special  commissioners,  on  drain,  272. 


703  INDEX 

[REFERENCES  TO  SECTIONS) 
DISCRETION, 

bids  for  public  improvements,  477,  478. 
bids  and  sale  of  drain,  249. 
commissioner,  in  locating  drain,  S49. 
delay  in  proceedings,  277. 

DISTRICT, 

description  of,  public  improvement,  322. 
determination  of,  344. 

DIVERSION  OF  STREAM, 
change  of  drain,  254. 
right  to,  312. 

DOG  TAX, 

nature  of,  132. 

DOLLAR  MARK, 

decree,  omission  of,  fatal,  377,  391. 
valuations,  93. 

DOUBLE  TAXATION, 
unconstitutional,  14. 

DRAINS, 

adjournment  of  special  commissioners,  270. 

appeal  from  assessment,  284. 

application  to  probate  court,  special  commissioners, 

application  of  probate  court,  description  of  lands,  2' 

appointment  of  special  commissioners,  267. 

apportionment  of  benefits,  282. 

bridges  and  culverts,  310. 

certiorari,  424. 

certiorari,  allegations  of  injury,  426. 

certiorari,  collateral  actions  with,  427. 

certiorari,  errors  not  cured  by  return,  428. 

certiorari,  explanations  permissible  in,  429. 

certiorari,  time  of  suing  out  writ,  425. 

change  of,  254. 

citation  from  probate  court,  264. 

collateral  attack  on,  454. 

constitutionality  of  drain  laws,  302. 

constitutionality  of  powers,  301. 

construction  of,  288. 

costs  and  expenses,  285. 

de  novo  proceedings,  278. 

delay  in  proceedings,  277. 


INDEX  704: 


[REFERENCES  TO  SECTIONS] 
DRAINS   (Continued), 

description  of  lands  assessed,  283. 

disagreement  of  jury  on,  275. 

disagreement  of    special  commissioners,  272. 

drain  funds  and  orders,  291. 

drains  in  highways,  305. 

drains,  private,  in  highways,  306. 

drains,  private,  307. 

drain  laws,  various,  303. 

equity  jurisprudence  over,  430. 

estopple  in  re,  226. 

ex  parte  proceedings,  260. 

first  order  on,  257. 

final  order  on,  279. 

hearing  in  probate  court,  266. 

interest  on  drain  taxes,  294. 

intersection  of  drains,  255. 

jurisdiction,  board  of  health,  247. 

jurisdiction,  county  and  township,  245. 

jurisdictional  because  of  public  health,  246. 

jurisdiction,  territorial,  244. 

liability  for  drain  tax,  292. 

lien  for  drain  tax,  145. 

mandamus  in  re  drain  tax,  417. 

municipal  liability,  293. 

municipal  liability  for  flooding,  306. 

necessity  of  drain,  258. 

notice  of  assessment,  280. 

notice  of  proceedings  in  probate  court,  265. 

notice  of  sale,  280. 

notice,  proof  of  service  of,  265. 

oath  of  special  commissioners,  269. 

obstructing  drain,  311. 

outlet  for  drain,  309. 

order  appointing  special   commissioners,  268. 

parties,  complainants,  443. 

parties,  defendants,  447. 

petition,  action,  on  one,  248. 

petition,  deepening  and  widening,  253. 

petition,  description  of  drain,  249. 

petition,  recitals  in,  251. 

petition,  signers  of,  250. 

petition,  signers'  liability  for  costs,  294. 

petition,  surplusage  in,  252. 

practice,  441. 

presumptions,  304. 

qualification  of  drain  commissioner,  242. 

records,  completness  of,  295. 

records,  filing,  296. 

release  of  right  of  way,  259. 

release,  attempt  to  obtain,  260. 


705    '  1NDEX 

[REFERENCES  TO  SECTIONS] 

DRAINS  (Continued), 

release  when  unnecessary,  281. 

res  judicata,  457. 

return  of  jury,  274. 

return  of  special  commissioners,  271. 

riparian  rights,  diversion  of  stream,  312 

riparian  rights  on  lakes,  313. 

riparian  rights,  percolating   waters,   315. 

riparian  rights,  surface  waters,  314. 

sale  of  drain,  281. 

sale  of  land  for  drain  tax,  290. 

statutes,  construction  of,  297. 

statutes,  healing  acts,  300. 

statutes,  saving  clauses  and  amendments,  2«8. 

statutes,   validating   acts,   299. 

supervisor,  287. 

supervisors,  board  of  286. 

survey  of  drain,  256. 

tax  roll,  289. 

township,  not  liable,  293. 

trespass,  414. 

venire  for  jury,  273. 

DRAIN  COMMISSIONERS, 

action  of,  on  one  petition,  248. 

appointment  of  special,  243. 

de  novo  proceedings,  278. 

delay  in  proceedings,  277. 

determination  of,  257,  258. 

ex  parte  proceedings  of,  260. 

jurisdiction  of,  for  benefit  of  public  health,  24«. 

jurisdiction  of,  county  and  township,  245. 

jurisdiction  of,  territorial,  244. 

liability  of,  for  outlet,  309. 

petitioners  liable  to,  294. 

qualification  of,  242. 

party  defendant,  447. 

DRAIN  FUNDS  AND  ORDERS, 
nature  of,  291. 
orders  not  negotiable,  288. 
township  not  liable  for,  293. 

DRAIN  TAX, 

bill  to  quiet  title,  in  re,  440. 

board  of  supervisors  to  order  spreading  of,  283,  286. 

certiorari,  in  re,  424,  429. 

complainants  in  bill  to  set  aside,  443. 

defendants  in  bill  to  set  aside,  44T. 


INDEX  706 

[REFERENCES  TO  SECTIONS] 
DRAIN  TAX  (Continued), 
interest  on,  294. 
lien  on  land,  145. 

mandamus,  to  compel  spreading  of,  286,  287. 
roll  to  identify  drain,  289. 
sale  of  land  for,  290. 
supervisor  to  spread,  287. 

EDUCATIONAL  INSTITUTIONS, 

exemption  of,  from  general  taxation,  59. 

exemption  does  not  apply  to  special  improvements,  345, 

fees  for  institutes,  legal,  27. 

EJECTMENT, 

action  of,  419. 

recovery  for  improvements  and  taxes,  419,  420. 

recovery  of  homestead  lands,  216. 


ELECTORS, 

action  of,  in  re  taxes,  115. 
method  of  raising  tax,  125. 
record  of  meeting  of,  116. 


EMINENT  DOMAIN, 

application  for  special  commissioners,  on  drain,  262. 

application,  hearing  on,  266. 

appointment  of  special  commissioners  on  drain,  267. 

citation  on  drain,  264. 

citation,  service  and  return  on,  265. 

disagreement  of  jury,  275. 

disagreement  of  special  commissioners,  272. 

oath  of  special  commissioners  on  drain,  269. 

order  appointing  special  commissioners,  268. 

return  of  jury  on  drain,  274. 

return  of  special  commissioners  on  drain,  271. 

special  assessments  and  eminent  domain,  316. 

venire  for  jury,  348. 

ENGINEER, 

authority  of,  on  improvements,  364. 

EQUALIZATION, 

certificate  of,  109. 
counties,   106. 

effect  on  township  tax,   108. 
record  of,  107. 


707  INDEX 

[REFERENCES  TO  SECTIONS] 
EQUITY  JURISDICTION, 

amendments  to  pleadings,  449. 

amount  of  tax  433, 

assessment  on  drain  not  under,  285. 

assessment  for  improvements  not  under,  355. 

auditor  general  as  defendant,  440. 

averments,  448. 

bill  to  quiet  title,  439. 

bill   restraining  expenditures,  435. 

bill  of  review,  451. 

bill  to  set  aside  drain  tax,  446. 

board  of  reviews,  action  not  under,  102. 

cloud  on  title,  439. 

cloud  on  title,  drain  tax,  424. 

collateral  attack  of  tax  decree,  453. 

collateral  attack  on  special  assessments,  455. 

drain  proceedings  in  probate  court  not  under,  281. 

injunction  to  restrain  waste,  434. 

legislature  regulation  of  injunction,  432. 

parties,  complainant,  442. 

parties,  complainant  on  drains,  443. 

parties,  defendant,  445. 

parties,  defendant   on  drains,  426. 

petition  for  writ  of  assistance,  401. 

res  judicata,  456. 

restraining  collections  of  tax.  436. 

special  assessments,  431. 

ESTIMATES, 

board  of,  332. 
improvements,  337. 
township  taxes,  116. 

ESTATE  OF  DECEASED  PERSONS,  see  ADMINISTRATOR 

ESTOPPLE, 

board  of  review,  not  appearing  before,  94. 

delay   in  bringing  suit,  on  drains,  425. 

descriptions,  erroneous,  86. 

drain,  changing,  254. 

drain  proceedings,  226,  430. 

general  principle,  225. 

petition  to  set  aside  sale,  399. 

public  improvements,  376. 

state,  from  demanding  interest,  32. 

EVIDENCE, 

decree,  375. 
healing  acts,  459. 


INDEX  708 

[REFERENCES  TO  SECTIONS] 
EVIDENCE  (Continued), 

presumptions,  in  general,  241. 

presumptions  from  assessment,  238. 

presumptions  from  records,    240. 

records,  232. 

return  of  sheriff  to  tax  notice,  403. 

streeting  opening  cases,  452. 

tax  not  presumed  collected,  239. 

tax  rolls,  238. 

time  of  payment,  160. 

EX  PARTE  PROCEEDINGS, 

appointment  of  special  drain  commissioner,  not,  243. 

apointment  of  special  commissioners  not,  265. 

assessments,  not,  280. 

determination,  257,  258,  264. 

drains,  260. 

release  of  right  of  way,  260. 

EXCESS, 

decree  for,  final,  193. 

duty  to  raise  above  statutory  limit,  118. 

tax,  on  roll,  48,  142. 

township  treasurer  liable  for,  when  collected,  166. 

EXEMPTIONS, 

church  and  school  property,  59. 

church  property  and  special  assessments,  345. 

contracts  exempting  property  from  special  assessments,  347. 

copy  rights,  etc.,  70. 

debts  to  be  deducted  from  amount  of  valuation,  71. 

farm  lands,  from  city  taxes,  57. 

legislative   power  to  exempt  property,  57. 

personal  property,  71. 

public  property,  58. 

public  property  from  special  assessments,  346. 

railroad  property,  from  general  taxation,  34. 

stock  of  corporations,  65. 

statute,  construction  of,  345. 

EXPENSES,  see  "Cosrs  AND  CHARGES." 

EXPORT  DUTIES, 

levy  by  state  illegal,  30. 

EXPRESS  COMPANIES, 
tax  on,  31. 


709  INDEX 

[REFERENCES  TO  SECTIONS] 

EXTENSION, 
roll,  140. 
taxes,  141. 
warrant,  150. 

EXTRAS, 

public  improvements,  illegal,  363. 

FARM  LANDS,  * 

exemption  of,  from  city  tax.  57. 

FEDERAL  CONSTITUTION, 

Art.  I,  Par.  2,  8 10,  as  to  import  duties.  18. 

Art.  IV,  Par.  1,  §2,  as  to  citizens  of  other  states,  16. 

FEES, 

attorney,  285. 

collector,  166. 

drain  commissioners  clerk,  285. 

institute,  27. 

license,  15. 

officers,  in  tax  proceedings,  363,  374. 

FENCE  VIEWER'S  TAX, 
validity  presumed,  133. 

FERRIES, 

license  for,  22. 

FILING  PAPERS, 

final  order  on  drains,  S75. 
necessity  for,  on  drains,  296. 

FINAL  ORDER, 
drains,  279. 

FIRST  ORDER, 

identification  of  drain  in,  262. 
requisites  of,  258. 

FIXTURES, 

public  property,  and  personal,  63,  76. 
real  estate,  when,  61. 


INDEX  710 

[REFERENCES  TO  SECTIONS] 
FLOODING, 

liability  of  municipality,  308. 
surface  water,  314. 

FOREIGN  CORPORATIONS, 
assessment  of  stock  of,  14. 
inheritance  tax  on,  40. 

FORMS, 

appointing  of  board  of  review,  284. 

apportionment  of  benefits,  282. 

certificate  of  board  of  assessors,  356. 

certificate  of  drain  tax  roll,  289. 

claim  of  appeal,  284. 

citation,  264. 

determination  after  hearing  objections,  321. 

determination,  321. 

declaration  against  a  municipality,  409. 

first  order,  257. 

final  order  for  determination,  279. 

instructions  to  assessors,  333. 

jury  to  sign,  274. 

notice  of  review  of  assessments,  339. 

notice  of  sale,  280. 

notice  of  sale  for  taxes,  402. 

oath  of  board  of  review,  284. 

order  of  hearing  on  claim  of  appeal,  284. 

order  confirming  report  of  jury,  276. 

oath  of  special  commissioners,  269. 

order  appointing  of  special  commissioner,  268. 

order  for  appointment  of  special  guardian,  263. 

printer's  affidavit,  265. 

petition,  262. 

petition  for  cleaning  out  drain,  252. 

petition  for  drain,  251. 

resolution  authorizing  bonds,  369. 

resolution  approving  rpll,  357. 

report  of  board  of  review,  284. 

return  of  special  commissioners,  271. 

release  of  right  of  way,  259. 

sheriff's  oath,  273. 

summons,  266. 

FOREST  PRODUCTS, 
assessment  of,  77. 

/ 

FRANCHISES, 

street  railway,  taxable,  35. 


711  INDEX 

[REFERENCES  TO  SECTIONS] 
FRAUD, 

board  of  review,  96. 

conveying  pryoperty  to  avoid  tax,  183. 

crediting  tax,  155,  157. 

drain  commissioner,  by  reason  of  interest,  142. 

lessee,  190. 

life  tenants,  182. 

mortgagee,  189. 

presumption  of,  does  not  arise  from  excessive  §ale,  180. 

public  officer,  I'M  re  sale,  181. 

public  officer  as  purchaser,  192. 

purchaser  at  sales,  see  "PURCHASERS." 

tenants  in  common  as  purchasers,  180. 

valuation,  as  avoiding  tax,  92. 

FREEHOLDER, 
who  is, 

FUNCTIONS, 

board  of  review,  94,  99. 

board  of  review  on  drains,  284,  286. 

drain  commissioner,  260. 

local  officers  on  drains,  244. 

special  commissioners  on  drains, 

good  roads,  law  of,  325. 

HEALING  ACTS, 

applicability  of,  223. 

auditor  general's  petition,  399. 

de  novo  proceedings  on  drains,  S78. 

drain  proceedings,  300. 

hearing  before  board  of  review,  94. 

legalizing  acts,  219. 

misnomer,  78. 

missing  records,  228. 

notice  as  to  probate  court  proceedings,  865,  266. 

probate  court,  in  rt  drains.  266. 

purpose  of  healing  acts,  222. 

retroactive  statutes,  221. 

review  of  assessments  for  public  improvements,  355. 

special  improvements,  375. 

validating  acts  on  drains,  299. 

HEARING, 

auditor  general's  petition,  188. 
board  of  review,  94,  99. 
notice  of,  on  drains,  865,  266. 
probate  court,  on  drains,  866. 


INDEX  712 

[REFERENCES  TO  SECTIONS] 


HEIRS, 

assessment  of,  78. 

HIGHWAY  TAX, 

action  of  board  of  supervisors  in  re,  126. 

estimates  of,  123. 

future  use,  illegal,  122. 

generally,  121. 

miscellaneous,  125. 

return  of  highway  labor,  124. 

HIGHWAYS, 

drains  in,  244,  305. 
obstruction  of  drains  in,  305. 
private  drains  in,  306. 

HIGHWAY  COMMISSIONER, 

citation  need  not  run  to,  on  drains,  264. 
drains,  care  over,  312n,  344n,  305n. 
road  machine  for,  125. 

HOMESTEAD  LANDS, 
designation  of,  5.3. 
statute  of  limitations  in  re,  216. 
taxation  of,  54. 

HUSBAND  AND  WIFE, 

purchasers  of  title  by,  189,  191. 
relation,  when  they  join  in  suit,  429. 
service  of  citation  on  drains,  429. 

IMPROVEMENTS, 

bids  for,  public,  360. 

bids,  irregularities  in  accepting,  361. 

claim  of  defeated  title  purchaser  for,  421. 

contract  for  public,  362. 

determination  in  re  public,  321. 

determination  in  re  necessity,  317. 

determination,  particulars  of,  322. 

estimates   for  public,   337. 

extras  in  re  public,  illegal,  363. 

general  tax  for  improvements  void,  6. 

notice  of  public,  338. 

parks,  cannot  assess  special  tax  for,  329. 

pavement,  power  to  make,  325. 

patented  articles  for  public,   336. 

petition  for  special  improvements,  318. 


713 


INDEX 


[REFERENCES  TO  SECTIONSl 
IMPROVEMENTS  (Continued), 

plans  and  specifications  for  public,  335. 

public   buildings,    tax    for  valid,  7. 

publication  of  notice  I'M  re  improvements,  341. 

reasonable  time  to  build  sidewalks,  328. 

recovery  for,  by  defeated  tax  title  purchaser,  410,  411. 

sidewalks,  power  to  make,  327. 

sidewalks,  reasonable  time  to  make,  326. 

state  cannot  tax  for,  0. 

vote  for  public,  319. 

tax  proceedings  are,  179n. 

INHERITANCE  TAX, 
what  subject  to,  40. 

INJUNCTION, 

cloud,  on  title,  what  is,  438. 

collection  of  tax,  436. 

drain  proceedings  in  re,  430. 

equity  jurisprudence,  amount  involved,  433. 

expenditures,  435. 

legislative  regulation  of,  432. 

mandamus  to  review  court  in  allowing,  416. 

quieting  title,  437,  439. 

special  assessments,  431. 

waste,  restraining,  434. 

INTERNAL  IMPROVEMENTS, 
general  tax  for,  invalid,  6. 

INTERNAL  REVENUE, 

protective  tax  is, 

stamp  duty  on  court  proceedings,  invalid.  41. 

INTEREST, 

drain  taxes,  294 a. 

INTEREST  IN  LAND, 

homestead  lands,  54. 
right  to  pay  taxes,  179. 
separate,  to  whom  assessable,  52. 
tenants  in  common,  56. 

INTERPLEADER, 

bill  of,  tit  re  drain  tax.  291. 


INDEX  714: 

[REFERENCES  TO  SECTIONS] 
INTERSECTION  OF  DRAINS, 
permissible,  when,  255. 

JOINT  ACTION, 

township  drain  commissioners,  illegal,  244. 

JOINT  TENANTS, 

liability  of,  for  tax,  52,  154. 
purchasers  of  tax  titles  by,  182,  186,  191. 
release  of  one,  on  drain,  a  nullity,  259. 
right  to  pay  taxes,  179. 

JUDGMENTS, 

compelling  payment  of,  118. 

JURISDICTION, 

auditor  general,  to  cancel  sale,  397. 
board  of  health,  none  on  drains,  247. 
circuit  court  commissioner,  none  in  re  tax   deeds,  214. 
drain  petition,  action  on  one,  248. 
drain  commissioner,  for  public  health,  246. 
drain  commissioner,  territorial,  244. 

equity,  to  open  decree,  399,  401.    See  CIRCUIT  COURTS  IN  CHAN- 
CERY. 
equity,  over  drain  proceedings,  430. 

JURY, 

condemnation  proceedings,  323. 
disagreement  of,  270. 
qualification  of,  461. 
return  of,  274. 
venire  for,  273. 

KNOWLEDGE, 
see  ESTOPPLE. 

LAKES,  ' 

drainage  of,  313. 

LAND  CONTRACTS, 

holder  of,  cannot  purchase  tax  title,  188. 
inheritance  tax  on,  40. 
taxation  of,  63. 

LANDS, 

see  REAL  ESTATE. 


715 


INDEX 


[REFERENCES  TO  SECTIONS] 
LEGALIZING  ACTS, 
validity  of,  219. 
see  HEALING  ACTS. 

LESSEE, 

purchaser  of  tax  title,  190. 

LEVY  OF  TAX, 

action  of  electors,  115. 

action  of  board  of  supervisors,  109. 

action   of  township  .board,   117. 

action  of  supervisors  on  drain  tax,  286. 

amount  to  be  raised  in  township,  118,  120. 

amount  of  special  assessment  to  be  raised  each  year,  350. 

apportionment  of  drain  tax,  282. 

certificate  of  board  in  re  general  tax,  139. 

certificate  on  special  assessment  roll,  356. 

confirmation, of  special  assessment  roll,  347. 

miscellaneous  provisions  in  re  special  assessments,  351. 

non-residents,  on  special  assessment  roll,  348. 

notice  of  apportionment  of  drain  tax,  280. 

notice  of  township  board, meeting,  119. 

review  of  special  assessments,  355. 

supervisor  to  spread  drain  tax,  365. 

valuation,  on  special  assessment  roll,  349. 

LEVY  TO  COLLECT  TAX, 
demand  for  tax,  161. 
levy  for  tax, -163. 
levy  upon  railroad  property,  164. 
payment,  what  is,  155. 
payment,  certificate  as,   156. 
payment,  involuntary,  158. 
payment,  voluntary,  157. 
protest,  common  law,  159. 
protest,  statutory,  160. 
sale  under,  165. 
tax  receipts,  162. 

LIABILITY, 

agents,   76. 

bank  stock,  tax  on,  68. 

city,   for  acts  of  engineer,  364. 

city,  on  bonds  for  improvements.  369. 

city,  on  contract  for  improvements.  361. 

city,  for  excess  of  cost  over  tax,  330. 

city,  on  extras,  363. 

city,  for  special  improvements.  368. 

collector,  for  acts  under  his  warrant,  158. 


INDEX  716 

[REFERENCES  TO  SECTIONS] 
LIABILITY  (Continued), 

collector,  on  his  bond,  152. 

collector, ,  for  failure  of  duty,  153. 

collector,    for    false    return,    174. 

collector,  on  levy,  163. 

drain  tax,  292. 

drain  commissioner,  for .  insufficient  outlet,  309. 

flooding  premises,  308. 

general,  for  tax,  154. 

life  tenants,  52. 

mortgagees,  ,154. 

non-performance  of  contract  for  improvement,  365. 

non-return  of  lands  to  auditor  .general,  177. 

partners,  74. 

petitioners   for  costs   on   drains,   294. 

reassessed,  drain  tax,  292. 

townships,   for  drain  moneys,  293. 

townships,  for  special  taxes  embezzled,  167. 

undivided  interest,  owners  of,   56,  78. 

LICENSE, 

amount  does  not  depend  upon  valuation,  89. 

ex  post  facto  regulations,  22. 

ferries,    26. 

interstate  commerce,  as  affecting,  17. 

liquor,  20. 

liquor,   collection  of,  25. 

liquor  dealer,  23. 

liquor  dealer's  bond,  24. 

liquor,  limits  of  sale  of,  21. 

nature  of,  14. 

reasonable,  18. 

trading,  19. 

uniformity  of  charge,   16. 

LIENS, 

agents,  who  pays  tax,  63,  76. 

drain  tax,  145. 

enforcement  of,  on  personal  property,  146. 

improvements,  262,  263. 

mortgagee,  for  tax,  189. 

personal  property,  146. 

real    estate,    143. 

state  swamp  lands,  144. 

LIGHTING  TAX, 
validity  of,  8. 


INDEX 

[REFERENCES  TO  SECTIONS] 
LIMITATIONS, 

accounts,  217. 

authority  of  city  engineer,  364. 

board  of  public  works,  in  re  contracts,  363. 

homestead   lands,  216. 

legalizing  acts,  219. 

special  assessments,  330. 

statutes,   214. 

tax  deeds,  215. 

tax  deeds  fraudulently  acquired,  184n. 

LIQUOR  TAX, 

collection  of,  25. 
license  to  sell  liquor,  20. 
limits  of  sale  of  liquor,  21. 
liquor  dealer,  23. 
liquor  dealer's  bond,  24. 

LOAN, 

liability   for   city   bonds,   369. 

purpose  of,  137. 

vote  for,  not  alternative,  125. 

LOCATION, 

choses  in  action,  63. 

corporations,  72. 

estates  and  incompetents,  63n,  75. 

farm  property,  within  city  limits,  57. 

forest  products,  74. 

inheritance  tax,  40. 

legality  of  tax,  as  affected  by,  14. 

non-residents,  property  of,  77. 

partnership  property,  74. 

place  of  taxation,   in  general,   75. 

uniformity  of  tax,  as  affected  by,  13. 

LOGS, 

assessment  of,  61. 

assessment  of  forest  products,  77. 

locus  of  assessment,  74. 

LOTS, 

description  of,  84. 
machines,  for  road,  125. 

MANDAMUS, 

board,  to  order  drain  tax  spread,  286. 
drains,  in  general,  417. 


INDEX  718 


[REFERENCES  TO  SECTIONS] 
MANDAMUS  (Continued), 

official    duties    enforced    by,    415. 

payment  of  bonds  or  judgment  enforced  by,  118. 

payment  of  drain  orders  enforced  by,  291,  226. 

payment  of  money  enforced  by,  291. 

special   improvement  in  re,  418. 

supervisor  compelled  to  spread  drain  tax  by,  287. 

MARINE  PROPERTY, 

ferries,  license  for,  22. 
vessels,  locus  of,  62. 

MATERIALS, 

patent   on,   367. 

use  of,  in  street,  367. 

MISAPPROPRIATIONS, 
effect  of,  on  tax,  137. 
raising  money  to  pay  void  orders,  125. 
raising  money  .  for  a  concealed  purpose,  317. 

MISNOMER, 

effect  of,  78. 

MISTAKE, 

certificate  of  payment,  155. 
clerical  errors  in   recording,   125. 
crediting  tax,  157,  158. 
dimensions   of   drain,   257. 
omission  of  property   from  roll,  92. 
petition  for  drain,  249. 
records,  237. 
special  commissioner,  name  of,  268.  , 

MORTGAGEES, 

inheritance  tax,  40. 
liability  of,  for  tax,  154. 
purchasers    of    tax    titles,    189,   403. 

MUNICIPALITIES, 

accounting  with  collector,  166. 
accounting    with    county   treasurer,    168. 
accounting  between  county  and  townships,   170. 
accounting  with  school  districts,   167. 
accounting  between  state  and  county,  171. 
accounting  between  townships,  169. 
assessments   for  parks,   water  works,  etc.,   329. 


719  INDEX 

[REFERENCES  TO  SECTIONS] 
MUNICIPALITIES  (Continued), 

bonds  for  improvements,  liability  on,  369. 

city  engineer,  authority  of,  364. 

claims,  presenting  to  council 

collateral,  attack  of  organization  of,  43. 

contract  for  improvements,  liability  on,  362. 

contract  for  improvements,  non-performance  of,  366. 

de  facto  officers,  44-47. 

drain  tax,  not  liable  for,  292,  293. 

duty   to  pay  debts,  118. 

extras,  not  liable  for,  363. 

legislative  allowance  of  claims,  220. 

liability  for  public  improvements,  368. 

liability   for  special  taxes  embezzled,  167. 

liability  for  excess  of  cost  of  improvement,  330. 

organization  of,  42. 

power  to  make  assessments,  316. 

power  to  license,  15,  25. 

power  to  pave,  325. 

power  to  sewer,  326. 

power  to  make  sidewalks,  327. 

power  to  tax,  3. 

state  taxes,  liability  for,  172. 

statutes  governing  are  not  contracts,  S. 

statute  of  limitations,  does  not  apply  to,  217. 

suits  against  to.  recover  back  tax  money,  409. 

NATIONAL  BANKS, 
assessment  of,  69. 

NECESSITY, 

drains,  308. 

public  improvements,  321. 

NEWSPAPERS, 

designation  of,  by  auditor  general,  382. 

notice  of  assessment  on  improvement,  339. 

notice  for  bids,  340. 

notice  of  proceedings  in  probate  court,  265. 

notice  of  public  improvement,  388. 

notice  of  sale  of  drain,  280. 

publication,  by  auditor  general,  383. 

publication,  details  of,  384. 

publication,  proof  of,  184,  385. 

publication,  drain  notice,  265. 

publication,  proof  of.  on  drains,  265. 

publication  of  notice  for  bids,  on  improvements,  241. 

publication,  proof  of.  342. 


INDEX  •  720 


[REFERENCES  TO  SECTIONS] 
NON-RESIDENTS, 

assessment  of  personal  property  of,  77. 
inheritance  tax  against  estates  of,  40. 
owners*  of  real  estate,  79. 

NOTICE, 

assessment  of  drain,  280. 

bids,  for  improvements,  340. 

board  of  review,  95, 

drain  proceedings  in  probate  court,  265. 

electors'  meetings,  116. 

public  improvements,  338. 

publication  of  in  re  bids,  341. 

sale  of  drain,  280. 

service  and  return  of,  342. 

special  assessments,  339. 

tax  purchaser  to  original  owner,  403. 

township  board  meetings,  119. 

OATH, 

special  commissioners  on  drain,  269. 

OBSTRUCTION, 

highway  drains,  311. 

OCCUPANT, 

liability  of,  for  tax,  52. 
purchaser  of  tax  title,  185. 

OFFICERS, 

auditor  general,  see  that  title. 

council,  qualification  of  members,  372. 

county  treasurer  and  liquor  tax,  20. 

de  facto,  44. 

deputy  officers,  47. 

drain  commissioner,  jurisdiction  of,  244-250. 

drain  commissioner,  qualification  of,  242. 

duties,  in  re  taxes,  168,  173. 

intruders,  41,  45. 

purchasing  tax  titles,  192. 

record  of  qualification  of,  229. 

special  drain  commissioner,  243. 

supervisor,  46. 

ORDER, 

appointing  special  commissioners,  267,  268. 
confirming  tax  sales,  396. 


721 


INDEX 


[REFERENCES  TO  SECTIONS] 
ORDER  (Continued), 
drain  funds,  291. 
final,  on  drain,  270. 
first,  on  drain,  258. 
hearing  on  tax  petition,  364. 
pro  confesso,  387. 
supervisors,  to  spread  drain  tax,  28ft. 

ORDINANCE, 
definite,  25. 

public  improvements,  320. 
reasonable,  18. 
record  of  vote  on,  318. 

OUT-LETS, 

liability  for  insufficient,  309. 

OWNER, 

assessment  of,  78. 

duty  to  complain  to  board  of  review,  94. 

non-resident,  79. 

refunding  taxes  to,  200. 

ORGANIZATION, 

collateral,   attack   of,   43. 
townships,  42. 

PARKS,  ETC., 

general  tax  for,  valid,  S. 

special  assessment  for,  invalid,  329. 

PAROL  PROOF, 

authority  to  raise  tax  not  shown  by,  116. 
cannot  show  adjournment  by,  458. 
clerical  error  not  shown  by,  117. 
collection  of  liquor  tax  shown  by,  20. 
record  of  equalization  not  varied  by,  107. 
records  original,  existence  shown  by,  377. 

PARTICULARS, 

determination  for  public  improvement,  322. 

estimates  for  public  improvements,  327. 

plans  and  specifications  for  improvements.  335. 

PARTIES, 

auditor  general's  petition,  378. 
auditor  general  as  defendant,  436. 


INDEX  722 


[REFERENCES  TO  SECTIONS] 
PARTIES  (Continued), 
complainants,  442. 

complainants  in  drain  proceedings,  433. 
defendants,  445. 

defendants  in  drain  proceedings,  426. 
special  assessments,  444. 

PARTNERSHIP  PROPERTY, 

assessment  of,  74,  78. 
railroads,  51. 

PAJTENTED  ARTICLES, 
use  of,  by  city,  336. 

PAVING, 

area  assessment,  354. 
benefit  assessment,  353. 
frontage  assessment,  352. 
power  to,  325. 

PAYMENT, 

certificate  as,  156. 

common  law  protest,  159. 

demand  for  tax,  161. 

generally,  155. 

involuntary,  158. 

liquor  tax,  20. 

recovery  back  of  tax  paid  by  mistake,  157. 

reimbursement  of  purchaser,  210,  212. 

right  to  pay  delinquent  taxes,  179. 

tax  receipts  as,  162. 

voluntary,  157. 

PEDDLERS, 

license,  19. 

trading  license,  19. 

uniformity  of  charge,  16. 

interstate  commerce  as  affecting,  17. 

PERSONAL  LIABILITY, 

administrator,  etc.,  75. 

attaches  April  1,  under  Detroit  charter,  73. 

generally,  154. 

owner  of  property,  143. 

persons  assessable,  78. 

wrong  person,  no  liability,  61. 


723  INDEX 

(REFERENCES  TO  SECTIONS! 
PERSONAL  PROPERTY, 
assessment  of,  61. 
banks,  assessment  of,  67. 
banks,  national,  69. 
banks,  savings,  66. 
choses  in  action,  63. 
collection  of  taxes  on  banks,  68. 
corporation  stock,  65. 
debts  deducted  from  assessment,  7L 
description  of,  87. 
exemptions,  71,  75. 
exemptions  of  copyrights,  70. 
forest  products,  77. 
inheritance  tax  on,  40. 
locus  of  partnership  property,  74. 
locus  in  general,  76. 
locus  on  property  of  non-resident,  77. 
mortgages,  64. 

non-resident  owner,  to  whom  assessable,  78. 
tax  statements,  88. 
vessels,  62. 

PETITION, 

auditor  general,  360. 
deepening  and  widening  drain,  253. 
description  of  drain  in,  249. 
liability  of-  signers  thereon,  294. 
public  improvement,  318. 
recitals  in  drain  petition,  251. 
rights  on  one  drain  petition,  248. 
setting  aside  sale,  398,  399. 
signers  on  drain  petition,  250. 
surplusage  in  drain  petition,  252. 
writ  of  assistance,  401,  402. 

PETITION  AND  RECORD, 

appeal  from  decree,  393. 

bill  of  review,  451. 

cancellation  of  deed  by  decree,  397. 

collateral  attack  of  decree,  453. 

decree,  390. 

decree,  evidence  of,  392. 

decree,  particulars  of,  391. 

descriptions  in  decree,  81-84.  3S6,  458. 

designation  of  newspaper,  382. 

dollar  mark,  omission  of,  377. 

filing  of,  377. 

hearing  on,  389. 

jurisdiction  of  court  on.  388. 

objections  to  petition,  386. 


INDEX  724 


[REFERENCES  TO  SECTIONS] 
PETITION  AND  RECORD  (Continued), 
opening  decree,  398,  399. 
order  of  hearing,  381. 
order  pro  confesso,  387. 
parties  to  petition,  378. 
proof  of  publication  of  notice,  385. 
publication,  details  of,  384. 
publication,  substituted  service,  383. 
subpoena,  380. 

PIPES  AND  MAINS, 
assessment  of,  51. 

PLANK  ROAD  COMPANIES, 
assessment  of,  57. 

PLANS  AND  SPECIFICATIONS, 
public  improvements,  335. 

PLATS, 

descriptions  according  to,  84. 

PLEADING  AND  PRACTICE, 
amendments,  449. 
averments,  448. 

certiorari,  in  re  drains,  424-429. 
opening  decree,  451. 

POLICE  POWER, 
dog  tax,  132. 
license,  15. 
special  improvements  not  within,  316. 

POST  FACTO  LAWS, 

see  "Ex  POST  FACTO  LAWS." 

POWER, 

auditor  general,  to  cancel  deed,  397. 

board  of  review,  94-102. 

bonuses,  to  grant,  9,  10. 

delegated  powers,  373. 

delegated  to  assessors,  333. 

delegated  to  council,  316. 

double  taxation,  14. 

drain  tax,  necessity  for,  258. 

equity,  in  drain  proceedings,  301. 


725 


INDEX 


[REFERENCES  TO  SECTIONS) 

POWER  (Continued), 

equity,  to  set  aside  decree  of  sale,  898,  899. 

inheritance  tax,  40. 

internal  improvements,  8. 

interstate  commerce,  17. 

license,  15-26. 

lighting  and  water  works,  8.  329. 

municipal  power,  3. 

parks,  329. 

paving,  325. 

privilege  tax,  38. 

public  buildings,  7. 

purpose  of,  4,  5,  317. 

sewers,  326. 

sidewalks,  327. 

special  assessments,  316. 

specific  taxes.  30. 

sprinkling,  329. 

state,  to  tax,  1. 

state  tax  commission,  112. 

street  railways,  11. 

PRACTICE, 

action,  form  of,  405. 

actions  at  law,  in  re  drain  improvements,  406. 

amendments,  449. 

amendments,  in  re  special  assessments,  450. 

amount  involved,  in  equity,  433. 

assumpsit  against  municipalities,  409. 

auditor  general,  as  defendant,  446. 

averments,  448. 

bill  to  quiet  title,  439. 

bill   of   review,  451. 

bill  to  quiet  title,  in  re  drain  tax,  424 

bill  restraining  drain  proceedings,  440. 

BILL, 

certiorari,  in  re  general  tax,  436. 

certiorari,  in  re  drains,  allegations  in.  416. 

certiorari,  collateral  with  other  actions,  488. 

certiorari,  errors  not  cured   by   return.   429. 

certiorari.  explanations  in  return  of,  454. 

certiorari  to  general  tax  not  favored,  421. 

certiorari  to  drain  tax,  favored,  425. 

certiorari  to  special  assessments,  not  favored,  4S3. 

certiorari  to  drain  tax,  time  of  bringing,  4SS. 

claim  for  improvements.  420,  481. 

cloud  on  title,  what  is.  438. 

collateral  attack  on  decree.  453. 

collateral  attack  on  special  assessments,  455. 


INDEX  726 

[REFERENCES  TO  SECTIONS] 
BILL  (Continued), 

collector,  action  against,  408. 

county  treasurer  against  township  treasurer,  166. 

ejectments,   419. 

equity  jurisdiction  of  special   assessments,  431. 

evidence  before  jury  in  street  opening  cases,  452. 

legislative  regulation  of  injunction,  432. 

lien    for  taxes  paid,  143. 

mandamus,  to  pay  money,  413. 

mandamus,  to  other  duties,  415. 

mandamus,  to  review  action  of  court,  416. 

mandamus,  to  spread  drain  tax,  441. 

mandamus,  in  re  special  assessments,  418. 

parties  to  petition  of  auditor  general,  361. 

parties  complainant,  442. 

parties  complainant  on  drains,  443. 

parties,  in  re  special  assessments,  444. 

parties  defendant,  in  chancery,  445. 

parties  defendant,  drain  proceedings,  426. 

petition  to  auditor  general  to  set  aside  sale,  397. 

petition  to  court  to  set  aside  sale,  398,  399. 

presenting  claim  to  council,  410. 

replevin,  411. 

res  judicata,  456. 

restraining  collection  of  tax,  436. 

restraining  waste,  434. 

restraining  sale  of  land,  437. 

restraining  expenditures,  435, 

suits  against  state,  407. 

supervisors  action  for  tax,  48,  405. 

trespass,  413. 

trespass,  in  re  drain  proceedings,  428. 

trover,  412. 

writ  of  assistance,  401. 

PRESUMPTIONS, 

assessments,  238. 

assessments  for  improvements,  371. 

collection  of  tax,   239. 

deeds,  209. 

existing  records,  240. 

generally,  241. 

healing  acts,  222,  223. 

tax  roll,  459. 

PRIVILEGES, 
tax  on,  38. 


727  INDEX 

[REFERENCES  TO  SECTIONS] 
PROBATE  COURT. 

application  for  special  commissioner.  262. 

appointment  of  special  commissioner,  167. 

citation,  264. 

de  novo  proceedings,  278. 

ex  parte  proceedings  in,  260. 

hearing,  for  special  commissioners,  266. 

inheritance  tax  determination,  40. 

notice  of  hearing,  on  drains,  965. 

order  appointing  special  commissioners,  168. 

venire  for  jury,  273. 

PROTECTIVE  TAXATION. 

state  cannot  levy  tax  for,  89. 

PROTEST, 

common  law,  159. 
demand  for  tax,  161. 
involuntary  payment,  158. 
voluntary  payment,  157. 

PUBLIC  HEALTH, 

necessity  of  drain  for,  246. 

PUBLIC  POLICY, 

notes  for  payment  of  tax  invalid,  20. 

rolls  must  be  unchanged,  50. 

township  treasurer  must  account  for  excess.  166 

PUBLIC  PROPERTY, 

appropriation  for,  by  supervisors,  136. 
exempt  from  tax,  53. 
exempt  from  special  assessments,  846. 
tax  for,  7. 

PUBLICATION, 

auditor  general's  petition.  367. 
citation  on  drain.  265. 
notice  of  assessment  district,  341. 
proof  of,  265,  342. 

PURCHASER, 

caveat  emptor,   194. 
generally,  of  tax  titles,  184. 
husband  and  wife,  as,  191. 
lessees  as,  190. 
life  tenants,  as.  182. 


INDEX  728 

[REFERENCES  TO  SECTIONS] 
PURCHASER  (Continued), 

mortgages  as,   189,  403n. 
occupants   as,   185. 
payment  by  purchaser,  193. 
public  officers  as,  192. 
reimbursement  of,  212,  213. 
state  tax  lands,  199. 
surplus,  195 

tenants  in  common,  as,  186. 
vendee,  in  land  contract,  as,  188. 

PURPOSE  OF  TAX, 

accumulation   of  money   forbidden,   5. 

bonuses  for  factories  illegal,  10. 

bonuses  for  railroads  illegal,  9. 

generally,  4. 

general  tax  for  public  improvement,  7. 

highway  tax,  122. 

internal  improvements  forbidden,  6. 

lighting  and  water,  8. 

protective  purposes  illegal,  30. 

school  tax,  127. 

special  assessment  must  state  correct  purpose,  317. 

special  funds,  4. 

street  railway  purchase  illegal,  11. 

QUALIFICATION, 

/      de  facto  officers,  44. 
officers,  372. 
title  to  office,  455. 
voters  on  bonds,  319. 

QUIETING  TITLE, 

bill  to  quiet  title,  439. 

bill  to  quiet  title  in  re  drain  tax,  440. 

cloud  on  title,  438. 

restraining  sale  of  land,  437. 

RAILROAD   COMPANIES, 

bonus  for,  illegal,  9 

culverts  over  drain,  259. 

exemption  from  general  tax,  34,  60. 

power    to    purchase,    unconstitutional,    11. 

release  of  right  of  way  for  drain,  327. 

sale  of  property  of,  on  levy,  164. 

street  railways,   taxation  of,  35. 

taxes  on,  32. 

union  depot  companies,  tax  on,  33. 


729  INDEX 

(REFERENCES  TO  SECTIONS] 
RATIFIED  ACTS, 

special  assessments.  374. 

REAL  PROPERTY, 

abbreviations   in    descriptions,   St. 

contiguous  parcels,  descriptions  of,  85. 

corporate  realty,  55. 

description  of,  81. 

estopple  in  description  of,  86. 

exemptions,  57. 

exemptions  of  educational  institutions,  59. 

exemptions  of  public  property,  58. 

exemptions  of  railroad  property,  60. 

fixtures,  when  real  estate,  61. 

generally,  to  whom  assessable,  51,  78. 

homestead  lands,  53. 

lien  upon,  for  tax,  143. 

lien  upon  state  swamp  lands,  144. 

lien,  when  tax  deed  is  void,  211,  213. 

non-resident  owners,  79. 

platted   lands,  description  of,  84. 

real  estate,  what  is,  51. 

section  lands,  description  of,  S3. 

separate  interests,  assessment  of,  51. 

tenants  in  common,  assessment  of,  56. 

unoccupied   lands,   80. 

REASONABLE  TIME, 

building  sidewalks,  328. 
ccrtiorari   in  re  drain  tax,   425. 
petition  to  set  aside  tax  deed,  398,  399. 

RE-ASSESSMENT. 

excuse   for  not   paying  first  assessment,   156. 
rejected  taxes,  105. 
special  assessments,  359. 

RECEIPTS, 

tax,  as  evidence,  16S. 

RECORD. 

absence  of,  230. 

acts  validating  drain  proceedings,  300. 

amendments  of,  235. 

board,  ordering  taxes  re-assessed,  105. 

bonds,  for  improvements,  369. 

certificates,  etc.,  as  evidence,  441. 

collateral  attack  of.  234. 


INDEX  730 


[REFERENCES  TO  SECTIONS] 
RECORD  (Continued), 

collection   of  liquor  tax,  20. 

completeness  of  drain  records,  295. 

determination  of  necessity  of  improvement,  370. 

equalization,  107. 

evidence  of,  232. 

filing   drain   records,    296. 

healing  acts,  222. 

healing  acts  in  re  drains,  301. 

healing  acts,  when  not  applicable,  223. 

meeting  of  electors,   116. 

meeting  of  township  board,   117. 

missing,  228. 

mistakes  in,  188. 

nature  of,  227. 

omitting  to  record,  232. 

presumptions,  as  to  assessments,  92. 

presumptions,  in  general,  241. 

presumptions,  in  re  existing  records,  240. 

qualification  of  officers,  229. 

records,  what  are,  231. 

rejected  taxes,  105. 

signatures. on,  99,  287. 

supplying,  232. 

tax  roll  as  evidence,  297. 

vote,  in  re  improvement,  319. 

REDEMPTION, 

change  in  time  of,  199. 

less  than  taxes  due,  199. 

owner,   from  tax  title   purchaser,   198. 

period  of,  on  state  bids,  198. 

refunding  tax,  200. 

REFUNDING  TAXES, 

defeated  purchaser's  right  to,  202,  203. 
generally,  no  power,  91. 
loss  sustained  by,  171. 

REJECTED  TAXES, 

county  treasurer,   174. 
reassessment   of,   105. 


RELEASE  OF  RIGHT  OF  WAY, 

attempt  to  obtain,  260. 
drains,    259. 
immaterial,  when,  261. 


731  INDEX 

[REFERENCES  TO  SECTIONS) 

RENTS, 

credit,  when,  71. 

REPLEVIN, 

action  for,  393. 

REPORT  OF  SALE, 

auditor  general,  395. 
county  treasurer,  377. 

RES  JUDICATA, 
nature  of,  456. 
drain  proceedings,  457. 

RESIDENCE, 

corporation,  72. 
taxpayer,  73. 

RETROACTIVE  STATUTES, 
legalizing  acts,  219. 
nature  of,  221. 

RETURN, 

auditor  general,  of  delinquent  taxes,  177. 
certificate  of  county  clerk,  176. 
citation,  265. 

county  treasurer,  from  municipality,  174. 
highway  labor  tax,  124. 
jury  on  drains,  274. 
notice  of,  in  re  special  assessments,  342. 
right  to  pay  delinquent  tax.  170. 
special  commissioners,  on  drains,  970. 
.    tax,  when  decree  is  set  aside,  178. 
writ  of  certiorari,  on  drains,  418,  429. 

REVIEW, 

appeal  to  board,  92. 

assessment  on  drains,  285. 

bill  of  review,  451. 

board  of  review,  94. 

board  of  supervisors,   112. 

certificate  of  board.  100. 

collateral   attack   of  certificate  of,    101. 

equity  will  not   renew  apportionments,  430.  440. 

estopple  for  not  appearing  before  board,  94. 

notice  of  action  of  board,  95. 

notice  of  special  assessment.  339. 


INDEX  732 

[REFERENCES  TO  SECTIONS] 
REVIEW  (Continued), 

omission  of  property  by  board,  92.. 

powers  of  board,  99. 

review  of  action  of  board,  96. 

review   of   special   assessments,   355. 

review,  by  state  tax  commissioner,  97. 

signature  of  board  on  roll,  101. 

tax  decree,  376. 

time  of  meeting  of  board,  98. 

RIPARIAN  RIGHTS, 

assessable  separately  from  fee,  51. 
drains,  313. 

ROAD  DISTRICTS, 

return  of  highway  labor  tax,  124. 
road  machines,  125. 

ROLL. 

amount  to  be  raised,  special  assessments,  350. 

board   of   review,  powers  of,  99. 

certificate  of  board  of  review,  100. 

certificate  on  collector's  roll,  139. 

certificate  on  special  assessment  roll,  356. 

change  in,  by  board  of  review,  94. 

change  in,  by  supervisor,  50. 

collateral  attack  on,  102. 

confirmation   of  special  assessments,  357. 

description  of  lands,  81-84. 

dollar  mark,  on  roll,  93. 

evidence  of  regularity  of  tax,  238. 

extension   of  taxes  on  collector's  roll,  140. 

excess  of   roll,  374. 

excessive  valuation,  90. 

franchises,  valuation  of,  92. 

miscellaneous  requirements  of  special  assessment,  351. 

notice  of  action  of  board  of  review,  95.- 

omission  of  property  from,  92. 

omission  by  mistake,  92. 

possession  of  roll,  48. 

review  of  board  of  review,  96. 

review  by  state  tax  commissioners,  97. 

review  of  special  assessment,  355. 

residents   and   non-residents,   on   special   assessments,   348. 

signature  on  roll,  101. 

statute  in  re  50n. 

supervisor  to  make  and  deliver,  48. 

time  of  meeting  of  board  of  review,  98. 

valuations  on,  89. 

valuations  on  special  assessment  roll,  349. 


733  INDEX      • 

[REFERENCES  TO  SECTIONS] 

SALE, 

amount  of  land  sold,  180. 

bill  of  review,  388. 

caveat  eniptor,  194. 

certificate  of  error,  380. 

contract  for  public  improvement,  362. 

cumulative  tax  titles,  Ml. 

drain,  281. 

entry  of  premises  without   notice,  403. 

fraud  in  sale,  181. 

husband  and  wife  as  purchasers,  191. 

lands,  for  drain  tax,  290. 

lessees  as  purchasers,  190. 

levy,  in  general,  165. 

life  tenant  as  purchaser,  187. 

lowest  bidder  for  improvement,  363. 

minors  and   incompetents,  362. 

mortgagees  as  purchasers,  189. 

non-performance  of  a  contract,  365. 

notice  for  bids  on  improvements,  340. 

notice  of  sale  of  drain,  280. 

notice  of  tax  purchase,  223. 

occupant,  as  purchaser,  185. 

order  of  confirmation,  396. 

payment,  193. 

payment  of  accrued  taxes.  197. 

petition  to  court  to  set  aside,  399. 

public  officers  as  purchasers,  192. 

publication  of  notice  for  bids,  341. 

purchasers,  in  general,  184. 

railroad  property  on  levy,  164. 

redemption,  state  bids,  198. 

report  of,  394. 

report  of,  to  auditor  genera!.  305. 

refunding  of  tax,  by  owner,  200. 

sale  for  less  than  taxes  due,  199. 

several  parcels  sold  as  one,  182. 

state  tax  lands,   197. 

surplus  arising  from,  195. 

tenants  in  common,  as  purchasers.  186. 

vendee  in  contract  as  purchaser,  188. 

vendors,  who  may  be.  1*3. 

writs  of  assistance.  401. 

writs  of  assistance,  under  the  statute.  402. 

writs  of  assistance,  defenses  to,  403. 

SCHOOL  TAXES. 

accounting  between  school  districts,  167. 
authority  to  raise,  129. 
higher  education,  128. 
miscellaneous.  130. 
purposes  of,  127. 


INDEX  734 

[REFERENCES  TO  SECTIONS] 


SERVICE, 

citation   on   drain,   265. 

notice,  in  re  improvements,  342. 

SEWERS, 

assessment  according  to  area,  354. 
assessment  according  to  benefits,  353. 
assessment  according  to  frontage,  352. 
power  to  build,  326. 

SHARES, 

assessment  of,  64. 
banks,  67. 

collection  of  tax,  68. 
foreign  corporations,  14. 
inheritance  tax  on,  40. 
national  banks,  69. 
savings  banks,  66. 

SIDEWALKS, 

materials  in,  367. 

reasonable  time   to  build,   328. 

power  to  build,  327. 

SIGNATURES, 

board  of  review  on  roll,  101. 

drain  petition,  250. 

first  order  on  drains,  257. 

liability  of  signers  on  drain  petition,  294. 

records,  236. 

supervisors'  proceedings,  108. 

supplying,  232. 

SPECIAL  ASSESSMENTS, 

actions  at  law,  406. 

amendments  to  chancery  bill,  450. 

assessment  district,  344. 

assessment  according  to  area,  354. 

assessment  according  to  benefits,  353. 

assessment  according  to  frontage,  352. 

bids  for  work,  360. 

bids,  lowest,  361. 

board  of  assessors,  333. 

board  of  estimates,  332. 

board  of  public  works,  331. 

certificate  on  roll,  356. 

certiorari,  423. 

collateral  attack,  455. 


735 


INDEX 


[REFERENCES  TO  SECTIONS] 
SPECI A L  ASSESSMENTS  (Continued), 
comprehensiveness  of  terms,  384. 
contract    for   the   work,   361. 
contract,  extras,  363. 
contracts  to  exempt  property  from,  347. 
confirmation  of  roll,  357. 
costs  and  expenses,  343. 
delegated  authority,  373. 
determination  to  make  improvement,  321. 
determination,  particulars  of,  322. 
determining  amount  paid  by  city,  334. 
engineer,  authority  of,  364. 
equity  jurisdiction,  3. 
estimates,  337. 
estopple,  376. 

evidence  before  jury,  452. 
exemptions,  church  property,  345. 
exemptions,  public  property,  346. 
healing  acts,  375. 
hearing  or  review,  355. 
jury,  323. 

liability  on  bonds  for  work,  369. 
liability  for  the  work,  368. 
limitation  of  assessment,  330. 
mandamus,  401. 

non-performance  of  contract,  365. 
notice  of  assessment,  339. 
notice  for  bids,  340. 
notice  of  proposed  improvement,  338. 
ordinance  in  re,  320. 
ownership  in  materials  in  streets,  367. 
parks,   etc.,  329. 
parties  to  action,  444. 
patented  articles,  334. 
petition  for  public  improvement,  318. 
plans  and  specifications,  335. 
power  to  levy  assessment,  316. 
power  to  pave,  315. 
power  to  make  sewers,  326. 
power  to  build  sidewalks,  327. 
presumptions,  371. 
publication  of  notice,  341. 
purpose  of  amendment.  317. 
qualification  of  officers.  372. 
railroad  property,  assessment  of,  847. 
ratified  acts.  374. 
reasonable  time  to  build.  8S8. 
reassessment.  359. 
record,  370. 

residents  and  non-residents,  848. 
roll,  amount  to  be  raised  each  year.  850. 


INDEX  736 

[REFERENCES  TO  SECTIONS] 
SPECIAL  ASSESSMENTS  (Continued), 
roll,  miscellaneous,  351. 
roll,  valuations  on,  348. 
service  of  notice  and  return,  342. 
sprinkling  streets,  329. 

stipulated  damages  for  non-performance  of  contract,  366. 
vacating  assessments,  358. 
vote,  319. 

SPECIAL  COMMISSIONERS, 
adjournment  of,  270. 
application  for,  262. 
appointment  of,  267. 
citation,  264. 

description  of  lands  in  application,  263. 
disagreement  of,  272. 
hearing,  266. 

notice  of  application,  265. 
oath  of,  269. 
order  appointing,  268. 
proof  of  service  of  citation,  265. 
return  of,  271. 

SPECIFIC  TAXES, 

distinction  between,  and  ad  valorem  tax,  29. 

express  companies,  31. 

inheritance  tax,  40. 

insurance  companies,  36. 

nature  of,  30. 

option   between   specific  and   general  taxation,  38. 

privileges,  38. 

protective  tax,  39. 

railroad    companies,   32. 

stamp  act,  41. 

telephone  and  telegraph  companies,  37. 

union  depot  companies,  33. 

water  power  companies,  38. 

specifications,  335. 

sprinkling  streets,  cannot  assess  for,  329. 

STAMPS, 

court  proceedings  free  from,  41. 

STATE, 

accounting,  with  county,  172. 
delegation  of  power  to  council,  316. 
interest  in  tax  lands  bid  in  for  taxes,  206. 
power  of,  to  tax,  1. 
return  of  taxes  to,  177. 


737 


[REFERENCES  TO  SECTIONS) 

STATE   (Continued), 

sale  of  tax  lands  by,  197. 
state  homestead  lands.  53. 
state  tax  lands,  198. 
suits  against,  407. 

STATE  DRAINS, 

jurisdiction  of,  244. 

STATE  TAX  COMMISSION, 

appointment  of,  113. 
creation  of,  111. 
powers  of,  112. 
review  of  taxes,  97. 

STATE  TAX  LANDS, 

conclusiveness  of  deeds  of,  214. 
designation  of,  196. 
limitation,  in  re  deeds,  216. 
sale  of,  197. 

STATE  TAXES, 

funds  for,  109,  110. 

STATEMENTS, 

taxable  property,  88. 

STATUTES, 

constitutionality  of  drain  acts,  302. 
construction  of,  218. 
construction  of  drain  statutes,  297. 
governing  municipalities,  not  a  contract,  2. 
healing  cuts  on  drains,  300. 
legalizing  acts,  219. 
legislative  allowance  of  claims,  220. 
limitation,  as  affecting  accounts.  217. 
limitation,  conclusiveness  of  deeds,  214. 
limitation  in  re  tax  deeds.  215. 
limitation  in  re  homestead  lands,  21*. 
records,  missing,  228. 
retroactive,  221. 

saving  clauses  and  amendments  to  drain  laws,  I 
title  of  acts,  224.  % 

validating  acts  on  drains,  299. 
(47) 

•s.  ^ 
O   *- 


INDEX  738 

[REFERENCES  TO  SECTIONS] 
ART. 

C.  L.  §2336,  equity,  by  supervisors,  405. 

C.  L.  §2856,  limiting  special  assessments,  .350. 

C.  L.  §2841,  making  special  assessments,  etc.,  a  lien  in  villages, 
154. 

C.  L.  §2847,  renewal  of  village  warrant,  special  assessments,  150. 

C.  L.  §2859,  as  to  general  village  taxes,  154. 

C.  L.  §2866,  renewal. 

C.  L.  §2868,  bringing  of  suit  by  village  treasurer,  405. 

C.  L.  §2871,  bringing  of  suit  by  village  treasurer,  405. 

C.  L.  §3207,  liability  for  special  taxes  in  city,  154. 

C.  L.  §3318,  liability  for  general  taxes  in  city,  154. 

C.  L.  §3329,  warrant  to  city  treasurer,  405. 

C.  L.  §3334,  bringing  suit  by  city  treasurer,  405. 

C.  L.  §3363,  143. 

C.  L.  §3443,  as  to  raising  additional  highway  tax  to  keep  high- 
ways safe,  116. 

C.  L.  §3384,  renewal  of  warrant  to  city  treasurer,  150. 

C.  L.  §3825,  defining  real  estate,  51. 

C.  L.  §3826,  providing  to  whom  property  shall  be  assessed,  52. 

C.  L.  §3827,  as  to  assessment  of  state  homestead  lands,  53. 

C.  L.  §3828,  as  to  assessment  of  corporate  realty,  55. 

C.  L.  §3829,  as  to  assessment  of  lands  of  tenants  in  common,  56. 

C  L.  §3830,  sub.  1,  2,  3,  as  to  exemptions  of  public  property,  58. 

C.  L.  §3830,  sub.  5,  6,  7,  9,  10,  as  to  exemptions  of  church  prop- 
erty, etc.,  57. 

C.  L.  §3830,  sub.  4,  as  to  exemptions  of  educational  institu- 
tions, 59. 

C.  L.  §3830,  sub.  8,  as  to  exemptions  of  railroad  property,  60. 

C.  L.  §3831,  sub.  4,  as  to  assessment  of  vessels,  62. 

C.  L.  §3831,  sub.  6,  as  to  assessment  of  choses  in  action,  63. 

C.  L.  §3831,  sub.  7,  as  to  assessment  of  stock  of  corporations,  65. 

C.  L.  §3831,  sub.  8,  as  to  assessment  of  banks,  66. 

C  L.  §3831,  sub.  11,  16,  51. 

C.  L.  §3832,  as  to  exemption  of  personal  property  from  assess- 
ment, 71. 

C.  L.  §3834,  as  to  assessment  of  personal  property,  62. 

C.  L.  §3834,  in  re  locus  of  assessment,  72. 

C.  L.  §3835,  as  to  assessment  of  partnership  property,  74. 

C.  L.  §3836,  in  re  residence  of  tax  payer,  73. 

C.  L.  §3836,  locus  of  personal  property,  63. 

C.  L.  §3837,  sub.  1-7,  locus  of  personal  property,  63,  75. 

C.  L.  §3837,  sub.  8,  locus  of  personal  property  of  non-residents, 
77. 

C.  L.  §3838,  in  re  forest  products,  77. 

C.  L.  §3840,  147. 

C.  L.  §3841,  as  to  tax  statements,  49. 

C.  L.  §3847,  as  to  description  of  contiguous  parcels,  85,  100. 

C.  L.  §3848,  sub.  1,  as  to  description  of  section  lands,  83. 

C.  L.  §3848,  sub.  4,  as  to  description  of  platted  lands,  84. 

C.  L.  §3848,  sub.  5,   35. 


7:;:. 


[REFERENCES  TO  SECTIONSJ 

ART    (Continued), 


8848,  sub.  7,  as  to  abbreviations  in  Hwrf^l*i»«   M 

3850,  as  to  valuation*,  m». 

:j-:,i.  providing  for  board  of  review.  04. 

3852,  05. 

3852,  sub  6,  05. 

3857,  as  to  equalization,  106. 

3858,  as  to  state  taxes.  107. 

3850,  certifying  township  taxes  to  board    m 

3860,  as  to  county  tax.  134.  138. 

3861,  certifying  taxes  township 

3862,  as  to  extension  of  taxes,  140.   14 1. 

3863,  as  to  lien  for  tax,  143. 

3863,  right  to  bring  -.nit   i.  r  tax.  4O5. 

3865,  in  re  preparing  roll  and  warrant.  Son.  224 

3869,  demand  for  tax,  161. 

1870,  bringing  of  suit  by  township  treasurer.  4O5,  163. 

3875,  return  of  taxes  to  county  treasurer.  166. 

3876,  payment  under  protest,  155. 
3876,  right  to  pay  taxes.  170. 

3878,  174. 

3879,  warrant  of  county  treasurer;   right  to  bring  suit. 


C.  L. 

3884,  petition  and  record  for  tax  sale,  180.  108. 

C.  L.  < 

3885,  order  and  hearing.  381. 

C.  L.  ( 

3886,  designation  of  newspaper,  382. 

C.  L. 

38H7,  publication  of  list  for  distribution.  383,  384. 

C.  L. 

3887,  objections  to  tax.  388. 

C.  L. 

3887,  entry  of  decree,  300. 

C.  L. 

3887,  decree.  301. 

C.  L. 

•ft 

3880,  publication  of  order  and  list,  and  proof  of  san 

4>Cr 

C.  L. 

3802,  appointment  of  guardian  ad  (item.  370. 

C.  L. 

3803,  report  of  sale  to  auditor  general.  305.  398. 

C.  L. 

3803,  as  to  setting  sale  aside  by  court.  398. 

C.  L. 

3805,  as  to  writs  of  assistance.  401. 

C.  L. 

3805,  as  to  validity  of  deed.  205.  200.  214. 

C.  L. 

3806,  as  to  redemption  of  lands.  108. 

C.  L. 

3806,  as  to  limitation  IN  re  assailing  tax  deeds,  21ft. 

C  L. 

3807,  as  to  redemption  of  lands,  108. 

C  L. 

3898,  as  to  vacating  sales.  446. 

C.  L.  i 

3001,  as  to  designation  of  state  tax  lands,  107 

C.  L.  ! 

3002,  as  to  duty  of  county  treasurer  to  sell  lands.  401. 

C.  L.  ! 

3002.  limitation   as  to  asiailmg  deed,  '.'l'- 

C.  L.  i 

3007.  as  to  sale  of  state  tax  lands.  107. 

C.  L.  ! 

3012.  218. 

C.  L.  13019,  as  to  reassessing  taxes,  lotn. 

C.  L.  13021,  as  to  certificate  of  error.  307. 

C.  L.  13021.  as  to  refunding  taxes.  200. 

C  L.  §3037.  IN  rt  injunction,  432. 

INDEX  740 

[REFERENCES  TO  SECTIONS] 
ART   (Continued), 

C.  L.  §3949,  in  re  limitation  as  to  homestead  lands,  216. 
C.  L.  §3950,  216. 

C.  L.  §3957,  reimbursement  of  defeated  purchaser,  212. 
C.  L.  §3957,  in  re  improvements,  213. 
C.  L.  §3959,  as  to  notice  of  tax  purchase,  402. 
C.  L.  §3959,  as  to  return  of  service  of  notice,  403. 
C.  L.  §3960,  see  drain  statutes,  401. 
C.  L.  §4193-4,  as  to  road  machines,  127. 

C.  L.  §4334,   as   to   culverts   in   right   of   way   of   railroad   com- 
pany, 259. 

C.  L.  §4359,  liability  for  drain  tax. 
C.  L.  §6277,  as  to  railroads,  32. 

C.  L.  §9698,  as  to  limitation  to  assail  tax  deed,  215. 
•  C.  L.  §10743,  as  to  taking  bond  from  contractor,-  457. 

No.  36  of  1865,  p.  44,  in  re  export  duties,  39. 
No.  77  of  1879,  in  re  telephone  etc.  co.'s,  unconstitutional,  37. 
No.  168  of  1881,  in  re  telephone  etc.  co's,  unconstitutional,  37. 
§§115,  116  of  No.  153  of  1885,  limiting  actions,  still  in  force,  215. 
No.  29  of  1887,  in  re  water  companies,  38. 
No.  204  of  1889,  in  re  license  in  upper  peninsular,  21. 
No.  174  of  1891,  in  re  railroads,  32. 
No.  200  of  1891,   64. 
No.  294  of  1891,  13. 
No.  26  of  1893,  3,  5. 

No.  205  of  1893,  I'M  re  inheritance  tax,  40. 
No.  206  of  1893,  general  tax  law,  44,  68. 
No.  154  of  1897,  in  re  union  depot  companies,  32-34. 
No.  423  of  1897,  6. 

No.  154  of  1899,  creating  state  tax  commission,  97,  111. 
No.  169  of  1899,  as  to  setting  aside  decree  of  sale,  178. 
No.  188  of  1899,  in  re  inheritance  tax,  40. 
No.  228  of  1899,   155. 
No.  338,  local  of   1890,   11. 

No.  39  of   1899,   limiting  special   assessments.  330. 
No.  90  of  1901,  in  re  railroad  companies,  32. 
No.  173  of  1901,  in  re  railroad  companies,  32. 
No.  178  of  1901,  in  re  bridge  companies,  30. 
No.  26  of  1903,  in  re  insurance  companies,  36. 
No.  183  of  1903,  limiting  right  to  file  bill  in  chancery,  432. 
No.  236  of  1903,  §141,  as  to  payment  of  redemption  money  to 

register,  198. 

No.  222  of  1903,  providing  for  reassessment  of  drain  tax,  291. 
No.  214  of  1905,  in  re  peddlers,  etc.,  unconstitutional,  21. 
No.  21  of  1905,  local  drain  act,  286. 

STOCK,  see  "SHARES." 

STONE  ROADS, 
law  of,  325. 


INDEX 

[REFERENCES  TO  SECTIONS! 

STREETS, 

materials  in,  367. 

power  to  pave,  325. 

power  to  sewer,  328. 

power  to  build  sidewalks  in,  327. 

power  to  sprinkle,  329. 

STREET  RAILWAY  COMPANIES, 
tax  to  purchase,  invalid,  11. 
taxation  of,  35. 

SUITS,  see  "ACTIONS." 

SUPERVISOR. 

change  of  roll  by,  50. 
drain  taxes  to  be  spread  by,  286. 
duty  in,  re  roll,  48. 
fraud  in  valuation,  92. 
omitted  property  from  roll,  92. 
suits  for  taxes  by,  4'J.   in:,. 
tax  statement  obtained  by,  88. 
valuation  of  property,  90. 

SURETY, 

liability  of,  152. 

SURPLUS, 

excess  of  roll  is  municipality's,  166. 
tax  sales,  195. 

SURVEYORS  TAX. 

presumed  legal,  131. 
TAX, 

accumulation   of  money  illegal.  5. 

action  for.  405. 

ad  valorem  basis,  29. 

agricultural  society  tax,  133. 

bonus,  void,  9,  10. 

bounty  tax,  134. 

certificate  of  payment,  156. 

common  law  protest,  159. 

county  tax,  135,  136. 

demand  for  tax,  161. 

dog*  tax.  132. 

double  taxation,  14. 

estimates  of  highway  tax.  123. 

excess  of  tax,  142. 

exemption  of  railroad  companies.  34. 


INDEX  742 


[REFERENCES  TO  SECTIONS] 
TAX  (Continued), 

express  companies,  31. 

extension  of  taxes,.  140. 

general,  for  lighting  and  water  purposes,  valid,  8. 

highway  tax,  121-126. 

highway  tax  for  future  use,  invalid,  122. 

highway  tax,  miscellaneous,  125. 

inheritance  tax,  40. 

insurance  companies,  36. 

interest  on  drain  tax,  294. 

internal  improvement  tax,  void,  6. 

levy  for,  163. 

levy,  upon  railroad  property,  164. 

liability  for  tax,  15.4. 

liability  for  drain  tax,  292,  293. 

license,  as  a  tax,  15. 

lien,  upon  real  estate,  143. 

lien,  upon  personal  property,  146. 

lien  upon  personal  property,  enforcement  of,  147. 

lien  of  mortgagee,  189. 

lien  for  drain  tax,  145. 

liquor  license,  20. 

liquors,  interstate  commerce,  17. 

order  of  board  to  spread  tax,  286. 

payment   of,   155. 

payment,  certificate  as,  156. 

payment,  involuntary,  158. 

payment,  voluntary,  157. 

payment  of  accrued  taxes  on  state  bid,  197. 

power  of  state  to  tax,  1. 

power  of  municipality  to  levy  tax,  3. 

privileges,  38. 

protective  purposes,  invalid,  39. 

public  building,  valid,  7. 

purpose  of,  4. 

railroad  companies,  32. 

rebating  illegal  tax,  91. 

record  of  vote  of  township  meeting,  116. 

receipt  for,  162. 

return  of  delinquent  taxes,  174. 

recovery  back  of  tax  paid  by  mistake,  157. 

return  of  highway  labor  tax,  124. 

sale  of  land  for  drain  tax,  290. 

sale  under  levy  for  tax,  165. 

school  tax,  127-130. 

specific  taxes,  30. 

stamp  duty  on  court  records,  invalid,  41. 

street  railway  companies,  35. 

street  railway  purchase,  invalid,  11. 

state  funds,  110. 

state  tax,  109. 

statutes  in  re  taxation,  not  contracts,  2. 


749 


INDEX 


IKK1  -KRK.VCES  TO  SECTIONS] 
TAX  (Continued). 

surveyor's  tax,  131. 

telegraph  and  telephone  companies.  37. 

tolls,  valid,  28. 

uniformity  of,  12. 

uniformity,  as  affected  by  location,  13. 

valuation  of  property,  89. 

valuation,  excessive.  90. 

valuation  low,  02. 

vote  of  electors,  115. 

TAX  DEEDS, 

presumptions   from,  209. 
see  DEEDS. 

TAX  RECEIPTS, 
evidence,  162. 

TAX  RECORD,  see  "PETITION  AND  RECORD." 
TAX  ROLL,  see  Rom 

TAX   STATEMENTS, 

owner  furnishes,  88. 

TELEGRAPH  &  TELEPHONE  COMPANIES, 
taxation  of,  37. 

TENANTS  IN  COMMON, 

assessment  of,  56,  78. 

purchasers  of  homestead  lands,  54. 

purchasers  of  tax  titles,  182,  186. 

TENANT  FOR  LIFE, 
duty  to  pay  tax,  52. 

TERMS, 

comprehensiveness  of,  324. 

TIMBER, 

assessment  of,  61. 
forest  products.  77. 
locus  of  logs,  74. 
real  property,  51. 


INDEX          .  744 


[REFERENCES  TO  SECTIONS] 
TITLE  OF  ACTS, 

sufficiency  of,  224. 

TOLLS, 

power  to  take,  28. 

TOWNSHIPS, 

accounting  with  collector,  166. 
/  accounting  with  county  treasurer,  168. 
accounting  between  townships,   169. 
accounting  between  township  and  county,  170. 
action  for  taxes,  by  supervisor,  49. 
agricultural  society  tax,  134. 
bounty  tax,   135. 
certificate  of  equalization,  108. 
certifying  tax  to  board  of  supervisors,  103. 
certifying  township  tax,  138. 
change*  in  roll  of,  50. 
collateral  attack  of  organization  of,  43. 
collector's  bond,  152. 
collector  de  facto,  151. 
collector's  liability,  153. 

collector's  liability  as  affected  by  warrant,  153. 
collector's  roll,  139. 
county  treasurer  as  agent  of,  20. 
de  facto  officers,  44-47. 
definition  of  de  facto  officers,  44. 
deputy  officers,  47. 
dog  tax,  132. 
electors'  action,  115. 

equalization  by  board  of  supervisors,  104. 
equalization,  effect  of,  108. 
excess  of  taxes,  142. 
extension  of  roll,  140,  141. 
fence  viewer's  tax,  133. 
good  roads,  325. 
highway  tax,  121-126. 
liability  for  drain  tax,  293. 
lighting  and  water  tax,  120. 
misappropriation  of  money,  137. 
notice  of  board  meetings,  119. 
organization  of,  42. 
record  of  equalization,  106. 
record  of  township  meetings,  233. 
school  tax,  127-130. 
specifying  amounts  to  be  raised,  118. 
state  taxes,   110,  111. 
supervisor,  48. 
surveyor's  tax,  131. 
township  board's  action,  117. 
township  tax,  114. 


INDEX 

[REFERENCES  TO  SECTIONS] 
TOWNSHIP  BOARD, 
levy  by,  117. 
specifying  amounts,  118. 
notice  of  board  meetings,  li». 

TOWNSHIP  CLERK, 

certifies  township  taxes.  104. 

TOWNSHIP  DRAIN  COMMISSIONER, 
jurisdiction  of,  245. 

TOWNSHIP  TREASURER. 
accounting  with,  166. 
bond  of,  152. 

certificate  of  county  clerk,  176. 
duties  of,  151. 
liability  of,  153. 

liability,  because  of  defective  warrant,  153. 
return  of  taxes  by,  174. 
suits  against,  252. 
suits  by,  405. 
warrant  of  county  treasurer,  175. 

TRESPASS, 

action  of,  413. 

drain  proceedings,  414. 

entry  without  notice,  401. 

TRUSTEES  AND  AGENTS, 
assessment  of,  76. 

UNIFORM  RULE, 

special  assessments  in  rt.  316. 

UNIFORMITY  OF  TAX, 
double  taxation,  14. 
licenses,  16. 
location,  13. 
necessity  of,  12. 
purpose  of  tax,  4. 

UNION  DEPOT  COMPANIES, 
taxation  of.  32.  33. 

USE, 

patented  articles  in  improvements,  336. 
liability  of  municipality  for,  MIL 


INDEX  746 


[REFERENCES  TO  SECTIONS] 
VACATING  ASSESSMENTS, 

public  improvements,  in  re,  358. 

VALUATION, 

certificate  of,  100. 

dollar  mark  on,  93. 

excessive,  90. 

general  rule,  89. 

low,   92. 

omission  of,  by  mistake,  92. 

rebate  on  account  of,  91. 

VENIRE, 

jury  on  drain,  273. 

VESSELS, 

assessment   of,   62. 
license  for  ferry,  22. 

VESTED  RIGHTS,   ' 

statutes  in  re  taxation  do  not  give,  2. 

VILLAGE  TREASURER, 
suits  by,  405. 

VOTE, 

method  of,  319. 

record,  for  special  improvement,  318. 

township  board  for  township  taxes,  115,  116. 

WARRANT, 

effect  of,  on  bringing  suits,  388. 

county  treasurer's,  175. 

defective   does   not   affect   chancery    sale,    143. 

duty  of  supervisor  to  attach  to  roll,  48. 

extension  of,  150. 

general   rule,   149. 

liability  for  defective,  153. 

statute  in  re,  502. 

WASTE, 

injunction  to  restrain,  434. 

WATER  POWER  COMPANIES, 
taxation  of,  38. 


•  »  '  INDEX 

(REFERENCES  TO  SECTIONS] 
WATER  TAX, 

legality  of,  8. 

WATER  PIPES,  ETC, 

assessment  of.  51.  61. 

WATER  WORKS, 

special  assessment  will  not  lie  for,  329. 

WRITS  OF  ASSISTANCE, 

entry  of  premises  without  statutory  notice,  403. 
petition  for,  401. 
statute,  402. 


000  688  431     e 


